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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILY LAW AMENDMENT BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
FAMILY LAW AMENDMENT BILL 2023
GENERAL OUTLINE
1. The Family Law Amendment Bill 2023 will primarily amend the Family Law Act
1975 (Cth) (Family Law Act), with some consequential amendments to the Federal Circuit
and Family Court of Australia Act 2021 (Cth) (FCFCOA Act). These amendments will make
the family law system safer and simpler for separating families to navigate, and ensure the
best interests of children are placed at its centre. The Bill also includes amendments to
clarify various aspects of family law and support the operation of the Federal Circuit and
Family Court of Australia (FCFCOA).
2. The amendments will address recommendations from the Australian Law Reform
Commission's Final Report No. 135: Family Law for the Future - An Inquiry into the
Family Law System (ALRC Report), as well as elements of the Government Response to the
Joint Select Committee on Australia's Family Law System (JSC Inquiry). These inquiries
highlighted a number of challenges facing the family law system, including extensive court
delays, complex and confusing legislation and inadequate protection for people at risk of
family violence. This Bill will focus on the ALRC Report and JSC Inquiry recommendations
relating to parenting and children.
3. Parenting arrangements are covered in Part VII of the Family Law Act which
provides the family courts with a wide power to make such orders about children's care and
living arrangements, parental responsibility, and other matters relevant to a child's welfare as
it thinks proper. Parenting matters profoundly affect the lives of the children they concern,
and deal with the issues that are most important and often most contested between separating
parents - their engagement in their children's lives. The effective operation of Part VII of the
Family Law Act is therefore critical to support the diverse needs of separating families in
Australia and to safeguard the best interests of the children involved. However, Part VII has
become overly complex and confusing over time, which has detracted attention from what
should be its primary objective.
4. The Bill will amend Part VII of the Family Law Act to make changes to provisions
governing parenting arrangements after separation. In most cases, these provisions will serve
as a guide for the majority of parenting decisions which are made outside of the courts. Part
VII also creates the framework for judicial decision-making for the smaller volume of
matters determined in the courts, which generally also have the highest concentrations of
complex psycho-social needs and often a combination of risk factors, such as allegations of
family violence or child abuse. The Bill will make a number of amendments to simplify and
clarify the pathway for decision-making in determining parenting arrangements to ensure
that children's safety and best interests are squarely and unequivocally the focus.
5. Consistent with Australia's obligations under Article 12 of the United Nations
Convention on the Rights of the Child (CRC), the Bill will also seek to ensure the views of
children are appropriately heard and considered in family law proceedings. Studies indicate
that children have difficulty having their views properly understood or taken seriously in
family law matters. The Bill will ensure that, in appropriate circumstances, and where they
wish to, children can express their views to the Independent Children's Lawyer, providing an
opportunity for their voice to be heard in family law matters affecting them.
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6. The Bill will ensure that Aboriginal and Torres Strait Islander children's particular
needs and cultural rights are acknowledged and focused on when considering their best
interests, and better incorporate Aboriginal and Torres Strait Islander concepts of family and
kinship in determining care arrangements.
7. The Bill will provide a new mechanism for the court to respond to and deter a known
form of harassment, that being the repetitive filing of applications by one party to oppress
another party. Often termed 'systems abuse', this tactic can be employed by perpetrators of
family violence to manipulate the legal system to exert control over, threaten and harass a
current or former partner. This can have substantial detrimental impacts on the physical and
psychological health of the respondent, and on any children involved in proceedings. The
Bill will provide the courts with a new power to scrutinise the impact of the institution of
further proceedings to prevent systems abuse occurring.
8. The ALRC Report and JSC Inquiry recommendations that this Bill seeks to address
were the product of extensive consultations over multiple years. This Bill was developed
through consultation with family law stakeholders, including the family law courts, peak
national non-government organisations, Aboriginal and Torres Strait Islander peak
organisations, legal professional bodies and family law service providers.
Overview of the Bill
9. Schedule 1 of the Bill contains significant amendments to streamline the legislative
framework for making parenting orders, including changes to the section which covers the
factors to be considered when making parenting arrangements in the best interests of the
child.
10. Schedule 2 of the Bill contains a redraft of Division 13A of Part VII of the Family
Law Act, which provides for the enforcement of parenting orders and other orders affecting
children, to make the consequences of non-compliance with parenting orders clearer and
more straightforward.
11. Schedule 3 of the Bill contains amendments to provide definitions related to the
concept of 'family' in the Family Law Act that are more inclusive of Aboriginal and Torres
Strait Islander culture and traditions.
12. Schedule 4 of the Bill contains amendments to provisions about Independent
Children's Lawyers (ICLs), including a requirement for ICLs to meet with a child and give
them an opportunity to express a view, and to expand the use of ICLs in cases brought under
the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the
Hague Convention).
13. Schedule 5 of the Bill contains amendments to the Family Law Act and FCFCOA Act
relating to family law case management and procedure, specifically:
• introducing new 'harmful proceedings orders' to prevent a vexatious litigant from
filing and serving new applications without first obtaining leave from the court, and
• broadening and extending the 'overarching purpose of family law practice and
procedure' and the accompanying duty, to all proceedings instituted under the Family
Law Act.
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14. Schedule 6 of the Bill contains a redraft of section 121 of the Family Law Act to
clarify restrictions around public communication of family law proceedings.
15. Schedule 7 of the Bill contains amendments to establish a new power for Government
to make regulations that would provide standards and requirements to be met by
professionals who prepare family reports.
16. Schedules 8 and 9 of the Bill make two administrative amendments to the FCFCOA
Act to enhance the operation of the FCFCOA. The amendments will:
• bring forward the review of the FCFCOA Act by two years, and
• state explicitly that a judge serving in the Family Court of Western Australia (FCWA)
can be dually appointed as a judge of Division 1 of the FCFCOA.
FINANCIAL IMPACT
17. Nil current financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law Amendment Bill 2023
1. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
2. The Bill will amend the Family Law Act to address recommendations from the ALRC
Report as well as elements of the Government Response to the JSC Inquiry, with a focus on
the safety and best interests of children and their families. The Bill also amends the FCFCOA
Act to better support the new approach to case management established by the FCFCOA.
3. In particular, the Bill will:
• amend the parenting orders framework in the Act to:
o refine the list of 'best interests' factors, with the aim of reducing complexity
and repetition and enhancing the focus on the needs of individual children
o include a standalone 'best interest' factor requiring a court to consider the
right of Aboriginal or Torres Strait Islander children to enjoy their culture
o repeal the presumption of equal shared parental responsibility and the related
equal time and substantial and significant time provisions
o make it clear in what circumstances a court can vary an existing parenting
order
• strengthen compliance with, and enforcement of, parenting orders by:
o redrafting the provisions in Division 13A of Part VII (compliance with
parenting orders) to make them simpler and easier to apply
o ensuring registrars can make compensatory time orders
• enhance the power of the courts to protect parties, and their children, from the harmful
effects of litigation through:
o new case management provisions
o a new power for courts to restrain the repeated filing of new applications
• clarify the restrictions on the publication of family law proceedings
• enhance the voices of children in family law proceedings, including by:
o codifying a requirement for ICLs to meet with and seek the views of children
o removing the restriction on judicial discretion to appoint ICLs in proceedings
under the Hague Convention
• establish a regulatory making power for Government to make regulations that would
provide standards and requirements to be met by family report writers who prepare
family reports, and
• make minor administrative amendments to the FCFCOA Act to enhance the
administration of the FCFCOA.
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Human rights implications
4. The Bill engages the following human rights:
• Rights of parents and children, including:
o best interests of the child: Article 3 of the United Nations Convention on the
Rights of the Child (CRC)
o responsibilities, rights and duties of parents: Article 18 of the CRC
o separation of children: Article 9 of the CRC
o right of children to be heard: Article 12 of the CRC
• Right to life and protection from exploitation, violence and abuse: Article 24(1) of the
International Covenant on Civil and Political Rights (ICCPR), and Articles 3(2), 6,
19(1) and 34 of the CRC
• Rights of equality and non-discrimination: Article 26 of the ICCPR and Articles 2 and
3 of the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW)
• Right to privacy and reputation: Article 17 of the ICCPR and, in relation to children,
Article 16 of the CRC
• Right to enjoy and benefit from culture: Article 27 of the ICCPR and Article 30 of the
CRC
• Right to a fair and public hearing: Article 14(1) of the ICCPR, and
• Right to freedom of opinion and expression: Article 19 of the ICCPR.
Rights of parents and children - Best interests of the child: Article 3 of the CRC
5. Article 3(1) of the CRC provides that in all actions concerning children, including by
courts, the best interests of the child shall be a primary consideration.
6. Article 3(2) of the CRC provides that parties will take appropriate measures to ensure
that children have the protection and care necessary for their well-being.
Determining a child's best interests
7. When a court is making a parenting order under Part VII of the Family Law Act, it is
required to regard the best interests of the child as the paramount consideration. Recent
inquiries have highlighted that the existing list of factors the court must consider in making
parenting orders is overly long and complex, can be confusing and can detract from the focus
on the best interests of the child.
8. The Bill will reduce complexity and increase focus on the best interests of children by
removing the existing two-tier structure of 'primary' and 'additional' considerations and
focusing on a core list of considerations that are likely to be relevant in a majority of matters.
The Bill will also introduce an additional factor for Aboriginal and Torres Strait Islander
children. The new best interests factors are:
• what arrangements promote the safety of the child and the child's carers, including
safety from family violence, abuse, neglect or other harm
• any views expressed by the child
• the developmental, psychological, emotional and cultural needs of the child
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• the capacity of each proposed carer of the child to provide for the child's
developmental, psychological, emotional and cultural needs.
• the benefit of being able to have relationships with their parents and other people who
are significant to them, where it is safe to do so
• anything else that is relevant to the particular circumstances of the child, and
• for an Aboriginal or Torres Strait Islander child, the child's right to enjoy their
Aboriginal or Torres Strait Islander culture.
9. In its General Comment on the implementation of Article 3 of the CRC, the
Committee on the Rights of the Child stated that it 'considers it useful to draw up a
non-exhaustive and non-hierarchical list of elements that could be included in a best-interests
assessment by any decision maker'. The 'list should provide concrete guidance, yet
flexibility'. The redrafted section 60CC is a manifestation of this approach and provides the
court with the ability to consider the unique circumstances in each parenting matter in a way
that places the best interests of a child at the forefront of decision-making.
Repeal of the presumption of equal shared parental responsibility
10. The Bill will repeal the presumption of equal shared parental responsibility (the
presumption) contained in section 61DA of the Family Law Act. The Bill will also repeal
section 65DAA. Currently, when the court makes an order for equal shared parental
responsibility, it is also required to consider making an order for the child to spend equal, or
substantial and significant, time with the child's parents. The repeal of the presumption is a
response to substantial evidence of community misconception about the law - that is, that
parenting arrangements after separation are based on a parent's entitlement to equal time,
rather than an assessment of what arrangements serve the child's best interests.1 This
misunderstanding may lead parents to agree to unsafe and unfair arrangements, or encourage
parties to prolong litigation based on the incorrect expectation of equal time.
11. The repeal of the presumption will ensure that the law focuses on the child's needs,
especially in matters involving allegations of family violence or other complex issues. It will
also ensure that the purpose of the parenting framework is clearer, assisting parents settling
their matters outside of court to more accurately and easily navigate the law. The changes
will help to ensure out-of-court settlements place the best interests of the child at the
forefront, and that decisions about parenting arrangements are not influenced by
misunderstandings about parental rights and responsibilities.
Redraft of Division 13A - compliance and enforcement
12. Non-compliance with parenting orders is a common issue, causing distress for many
families. The ALRC Report identified Division 13A, which provides for the enforcement of
parenting orders and other orders affecting children, as an area of the Family Law Act which
would benefit from simplification. The Bill redrafts Division 13A to make the consequences
of non-compliance with parenting orders clearer and easier for court users to understand and
for the courts to apply.
1See ALRC (Australian Law Reform Commission), Family Law for the Future - An Inquiry into the Family
Law System (2019), para 5.80.
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13. A new provision (section 70NAB) emphasises that the principal objects of Division
13A are to meet the best interests of children by:
• supporting parties to child-related orders to comply with those orders
• 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)
• deterring non-compliance with child-related orders
• upholding the authority of the court by enforcing compliance with child-related orders
where the court considers this necessary and appropriate, and
• providing for the imposition of appropriate sanctions on a person who seriously or
repeatedly contravenes child-related orders without having a reasonable excuse.
14. The simpler provisions will make the full scope of the courts' powers to enforce
orders and impose appropriate sanctions in more serious cases clearer to parties, and
encourage compliance with parenting orders that are made in a child's best interests.
15. The Bill will also allow registrars of both Divisions of the FCFCOA to be delegated
the power to make a further parenting order for a child to spend additional time with a person
(commonly referred to as a 'make-up' time or 'compensatory time' order). This will support
the operation of the FCFCOA's National Contravention List that commenced on 1 September
2021. The List promotes the best interests of children by helping to achieve timely outcomes
in contravention proceedings and supporting future compliance with parenting orders.
16. The proposed amendments to Division 13A promote the best interests of a child by
encouraging compliance with parenting orders, ensuring greater consistency for children and
by reducing complex, expensive and lengthy contravention proceedings which have the
potential to detract from the best interests of the child.
Other provisions
17. The Bill also expressly recognises and strengthens the paramountcy of the best
interests of children in family law parenting proceedings by:
• specifying that, in proceedings where the best interests of children are paramount, the
court, parties to proceedings, and lawyers must act in a way that promotes the best
interests of a child (new Division 1A of Part XI)
• codifying the common law rule established by Rice and Asplund, that specifies that
for a court to reconsider a final parenting order it must be in the child's best interests
to do so (new section 65DAAA), and
• including an express statement in new subsection 68L(1) that Hague Convention
matters are to be included in the list of matters involving a child's welfare as a
paramount or a relevant consideration for the purposes of section 68L.
Rights of parents and children - Right of children to be heard: Article 12 of the CRC
18. Article 12 of the CRC provides that children who are capable of forming their own
views have the right to express those views freely in all matters affecting them, the views
being given due weight in accordance with the age and maturity of the child.
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19. Article 12(2) further provides that children shall be provided the opportunity to be
heard in any judicial and administrative proceedings affecting them, either directly, or
through a representative or an appropriate body.
20. The Bill recognises a child's right to be heard in family law proceedings, by providing
that the court must, when determining what is in the child's best interest, consider any views
expressed by the child (new paragraph 60CC(2)(b)). This is supported by existing section
60CD, which details how the views of a child can be expressed, and section 60CE which
notes that none of these sections require a child to express their views.
21. The Bill strengthens the right of the child to be heard in family law proceedings by
including a requirement that an ICL must meet with the child whose best interests they have
been appointed to represent and provide the child with an opportunity to express a view.
The best interests of the child will ordinarily be served by the ICL enabling the child to be
involved in proceedings in a safe and appropriate way. While an ICL is required by the
Family Law Act (paragraph 68LA(5)(b)) to convey the child's views to the court if they have
been expressed, at present there is no legislative obligation for an ICL to meet with or seek a
child's views unless this is ordered by a judge (subsection 68L(5)). Although many ICLs do
meet with children and seek to facilitate children's participation where appropriate, new
subsection 68L(5A) will require all ICLs to do this. New subsections 68L(5B) and (5C)
clarify the circumstances where the ICL is not required to perform these duties, in order to
safeguard the safety and wellbeing of the child.
22. The Bill also repeals existing subsection 68L(3) of the Family Law Act, to remove the
requirement that the court must consider there to be 'exceptional circumstances' to justify the
appointment of an ICL for proceedings under the Hague Convention. This will allow judicial
discretion to appoint ICLs in Hague Convention matters in line with other family law matters
rather than only in exceptional circumstances, increasing the voice of the child in these cases,
and therefore promoting the child's right to be heard.
Rights of parents and children - Responsibilities rights and duties of parents: Article 18 of
the CRC
23. Article 18 of the CRC recognises the principle that parents have common
responsibilities for the upbringing and development of the child, and that the best interests of
the child will be their basic concern.
24. The Bill promotes this right by including a requirement that, when determining what
is in a child's best interest, a court must consider the capacity of each proposed carer of the
child to provide for the child's developmental, psychological and emotional needs.
25. The Bill will also strengthen the family law system's focus on parents' responsibilities
by repealing the presumption of equal shared parental responsibility and its associated
provisions to consider equal time, or substantial and significant time. As noted above, there is
evidence that these provisions have created a misunderstanding that parents are entitled to
equal time with a child, which may lead parents to agree to unsafe or unfair arrangements.
Repealing these provisions will support parents to focus on what arrangements are in their
child's best interests.
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Rights of parents and children - Separation of children: Article 9 of the CRC
26. Article 9(1) of the CRC recognises the right of a child not to be separated from their
parents against their will except where it has been determined to be in the child's in best
interests. Article 9(1) recognises that such a determination may be necessary in cases
involving neglect or abuse by a parent, or where parents are living separately.
27. Article 9(3) outlines that children separated from one or both parents have a right to
maintain personal relations and contact with their parents, except if it is contrary to their best
interests.
28. The Bill expressly recognises and supports these rights by providing that, in
determining what is in a child's best interests in parenting proceedings, the court must
consider:
• what arrangements promote the safety of the child and the child's carers,
including safety from family violence, abuse, neglect or other harm (new
paragraph 60CC(2)(a)), and
• the benefit of being able to maintain relationships with each parent and other
people who are significant to them, where it is safe to do so (new paragraph
60CC(2)(e)).
Right to life and protection from exploitation, violence and abuse: Article 24(1) of the
ICCPR, and Articles 3(2), 6, 19(1) and 34 of the CRC
29. The ICCPR provides for fundamental civil and political rights which derive from the
inherent dignity of each person, and makes special provision for children. In particular,
Article 24(1) provides for protection for all children, without discrimination, by virtue of
their status as minors.
30. The CRC recognises that children are entitled to special care and assistance, and that
they should grow up in an atmosphere of happiness, love and understanding. In particular:
• Article 3(2) provides that parties will take appropriate measures to ensure that
children have the protection and care necessary for their well-being.
• Article 6 provides that children have the right to live a full life and Governments
should ensure that children survive and develop healthily.
• Article 19(1) requires parties to take all appropriate legislative measures to protect
children from all forms of physical or mental violence, injury or abuse, including
negligent treatment and sexual abuse.
• Article 34 provides that parties will protect children from all forms of sexual
abuse.
31. The Bill promotes children's right to protection from exploitation, violence and abuse
by providing that, in determining what is in a child's best interests, the court must consider
what arrangements promote the safety of the child and people who care for the child,
including safety from family violence, abuse, neglect or other harm (new paragraph
60CC(2)(a)). This right is strengthened by the Bill's emphasis on prioritising safety for
children over having a dangerous or harmful relationship with a parent. The Bill does this by
providing that, when determining what is in a child's best interest, the court must consider the
benefit to a child of having relationships with each parent and other people who are
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significant to them, where it is safe to do so (new paragraph 60CC(2)(e)). The need to ensure
safety from neglect promotes Article 6 of the CRC and the Government's requirement to
ensure children's healthy development.
32. The Bill also inserts a new definition of 'overarching purpose of family law practice
and procedure' in section 96B of the Family Law Act, to ensure that family law proceedings
have a focus on ensuring the safe resolution of disputes in a manner consistent with the best
interests of the child, in addition to the existing elements of the overarching purpose in the
FCFCOA Act.
Rights of equality and non-discrimination: Article 26 of the ICCPR and Articles 2 and 3 of
the CEDAW
33. Article 26 of the ICCPR provides that all persons are equal before the law and are
entitled without any discrimination to the equal protection of the law, and that the law shall
prohibit any discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
34. The CEDAW provides for key principles of equality which cover many aspects of
women's lives, including political participation, health, education, employment, marriage,
family relations and equality before the law. In particular:
• Article 2 provides that parties agree to pursue the elimination of discrimination
against women, including by introducing new laws or policies, changing existing
discriminatory laws and providing sanctions for discrimination where appropriate.
• Article 3 requires parties to take appropriate measures to ensure women's full
development and advancement, so that they can enjoy human rights and
fundamental freedoms on the same basis as men.
35. Discrimination against women includes gender-based violence - that is, violence that
is directed against a woman because she is a woman, or that affects women
disproportionately. Although family violence is perpetrated by and against both men and
women, and the Family Law Act is accordingly neutral, the majority of those who experience
family violence, are women. Therefore, the measures in the Bill which seek to better protect
victims of family violence will, in turn, address the impacts of gender-based violence on
women.
36. The Bill introduces 'harmful proceedings orders' to prevent vexatious litigants from
filing and serving new applications without first obtaining leave from the court. The new
orders will allow the court to prevent harm to the intended respondent, assisting to protect
victim survivors of family violence from systems abuse. Recognising the agency of victim
survivors, as part of the court's powers to make harmful proceedings orders, the courts will
have the power to order whether or not the respondent (the person who a harmful proceedings
order is intended to protect) should be notified of any further application for leave made by
an applicant that has been dismissed. In making this decision, the court must have regard to
the wishes of the respondent.
37. To ensure procedural fairness, a meritorious application made for a proper purpose
would be allowed to proceed, regardless of the impact that it might have on the respondent.
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38. The Bill also seeks to better protect victim survivors of family violence by providing
that, in determining what is in a child's best interest, the court must consider what
arrangements would promote the safety (including from family violence, abuse, neglect or
other harm) of each person who cares for the child (new subparagraph 60CC(2)(a)(ii)).
Right to privacy and reputation: Article 17 of the ICCPR and, in relation to children, Article
16 of the CRC
39. Article 17(1) of the ICCPR states that 'No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation'. Under Article 17, an interference with an individual's
privacy must have a lawful basis and must not be arbitrary. The right to protection against
arbitrary and unlawful interference protects personal information.
40. Article 16 of the CRC states that 'No child shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or correspondence, nor to unlawful attacks
on his or her honour and reputation. The child has the right to the protection of the law
against such interference or attacks'.
41. The Bill contains a number of provisions dealing with non-disclosure of confidential
information, which support the right to privacy of the parties involved in a family law case.
Communications of Details of Family Law Proceedings
42. New Part XIVB will replace section 121 of the Family Law Act and will prohibit
public communication of identifiable information. The purpose of the new Part is to make the
law in this area clearer and easier to understand. The Part contains two offences, both with a
maximum penalty of one-year imprisonment, which prohibit the public communication of
identifiable information connected to family law proceedings as well as prohibiting publicly
disclosing lists of names of persons in connection with family law proceedings. As is the case
with the existing section 121, private communications are permitted under the new Part, as
well as necessary exceptions.
43. The restriction on communication of court proceedings is an important aspect of
affording privacy to separating families. The new Part promotes the right to privacy for those
within the family law system by prohibiting intrusive media reporting and public exposure of
sensitive family law details. The new Part further supports Article 17 of the ICCPR and
Article 16 of the CRC by protecting against an attack on a person's reputation by prohibiting
public communication of identifiable family law information.
44. The Part contains exceptions where identifiable information of those within the family
law system may be communicated publicly. This includes where identifiable information is
shared with agencies, persons and bodies who have a significant and legitimate interest,
which is greater than the interest of the public generally, in the subject matter of the
communication and other exceptions to facilitate court proceedings, such as legal aid, training
and studies. In order for an interference with the right to privacy not to be arbitrary, the
interference must be for a reason consistent with the provisions, aims and objectives of the
ICCPR and be reasonable in the particular circumstances. The sharing of information
permitted under the Part imposes a reasonable limitation on the right to privacy, as limited
information sharing is only permitted for specified and necessary purposes such as to support
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families and children during family law proceedings, including through access to services, to
protect children from harm or abuse, and to facilitate court proceedings.
45. The Bill promotes the right to privacy, with any limitations being reasonable,
necessary and proportionate to the aim of protecting the particular vulnerabilities of children.
Right to enjoy and benefit from culture: Article 27 of the ICCPR and Article 30 of the CRC
46. Article 27 of the ICCPR protects the rights of individuals belonging to ethnic,
religious and linguistic minorities within a country to enjoy their own culture, practise their
own religion and use their own language. These rights are particular to members of such
minorities, who also enjoy the other rights guaranteed in the human rights treaties.
47. Article 30 of the CRC states that children of indigenous origin should not be denied
the right, in community with other members of his or her group, to enjoy his or her own
culture, to profess and practise his or her own religion, or to use his or her own language.
48. The Bill promotes Aboriginal and Torres Strait Islander children's right to enjoy their
culture by introducing a requirement for the court to consider that right when determining
what is in the child's best interest. Specifically, the court is required to consider the child's
right to enjoy their Aboriginal or Torres Strait Islander culture by having the opportunity to
connect with, and maintain, their connection with, their family, community, culture, country
and language. The court must also consider the likely impact any proposed parenting order
will have on that right.
49. Connection to culture is a significant protective factor for the wellbeing of Aboriginal
and Torres Strait Islander children and their families. Creating a specific provision for
Aboriginal and Torres Strait Islander children, rather than including it in new
subsection 60CC(2), is intended to ensure that the particular needs and cultural rights of
Aboriginal and Torres Strait Islander children are acknowledged and focused on specifically
when considering what is in their best interests.
Right to a fair and public hearing: Article 14(1) of the ICCPR
50. Article 14(1) of the ICCPR requires all persons to be equal before the courts and
tribunals. It further provides that everyone is entitled, in the determination of 'rights and
obligations in a suit at law', to a 'fair and public hearing by a competent, independent and
impartial tribunal established by law'. The right to a fair hearing applies in both criminal and
civil proceedings, including whenever rights and obligations are to be determined.
51. A fair hearing requires recognition of the interests of all parties. The procedures
followed in a hearing should respect the principle of 'equality of arms' which requires that all
parties to a proceeding must have a reasonable opportunity of presenting their case under
conditions that do not disadvantage them as against other parties to the proceeding.
Harmful proceedings orders
52. New Division 1B introduces 'harmful proceedings orders'. This will provide the
courts with a new power to restrain a person from filing any further family law applications
and serving them on the respondent, without first obtaining leave of the court. The purpose of
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this measure is to protect the respondent and/or children who are the subject of proceedings
from the harmful impact of frequent and unnecessary applications filed by an applicant. Once
this order is in place, further applications will first be assessed by the court to ensure that they
are not vexatious, frivolous or an abuse of proceedings and have reasonable prospects of
success before they can be filed and served.
53. The power to make a harmful proceedings order will be exercisable by the court on its
own initiative, or on application by a party to the proceedings, at any time while the
proceedings are on foot. The court will need to be satisfied that there are reasonable grounds
to believe that further proceedings will be harmful to the respondent. A non-exhaustive list of
examples of 'harm' is provided to assist in determining what may be considered harmful
(new section 102QAC).
54. The new orders constitute a limitation on the right to a fair hearing as they may limit
an applicant's opportunity to present their case if they are subject to such an order. However,
this limitation is reasonable and proportionate to the legitimate aim of preventing harm to the
respondent through continuous litigation. To ensure procedural fairness to the applicant, the
court must not make a harmful proceedings order without first hearing the person or giving
them an opportunity of being heard on the merits of their application (new subsection
102QAC(5)). Additionally, once a harmful proceedings order is in place, a meritorious
application made for a proper purpose would be allowed to proceed, regardless of the impact
that it might have on the respondent (new subsection 102QAG(1)).
55. The Bill's limitations on the right to a fair hearing are therefore necessary, reasonable
and proportionate to the legitimate aim of protecting vulnerable parties and sensitive
information.
Regulation making power for standards and requirements for family report writers
56. The Bill inserts a new Part IIIAA in relation to family report writers. New section
11K of that Part introduces a power to make regulations that set standards and requirements,
including recognition, monitoring and enforcement of compliance with the set standards and
requirements for family report writers, and to provide for consequences for non-compliance.
New subsection 11K(4) provides that these consequences may include offences and civil
penalty provisions with pecuniary penalties not exceeding 30 penalty units, and other
administrative sanctions such as suspension or cancellation of recognition of compliance.
57. The limitations on these offences have been developed by reference to the
Attorney-General's Department's A Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers, and the example penalties provided in that
document.2 The limitations on the potential offences and penalties are consistent with the
recommendation in the Guide that offences enabled by regulation should not exceed 50
penalty units for an individual.
58. New subsection 11K(4) does not itself engage the rights and protections as provided
for in Article 14 of the ICCPR (such as rights to a fair trial and fair hearing in Article 14(1)
2The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
available at www.ag.gov.au.
14
and the right not to be tried or punished twice for the same offence in Article 14(7), but
provides a power to make regulations, and sets the parameters for those regulations. The
regulations may engage these rights, once developed. Further consideration of relevant rights
and appropriate protections will be undertaken as part of the preparation of any regulations
enabled by the Bill. The regulations would be disallowable to allow Parliament to have
appropriate oversight and scrutiny of the delegated powers.
59. New section 11K also triggers the enforcement powers of Part 4 of the Regulatory
Powers (Standard Provisions) Act 2014 so that any civil penalty provisions created by the
regulations for the purposes of section 11K are enforceable under Part 4 of that Act.
Subsection 82(6) of that Act applies to require the court to take into account all relevant
matters in determining the pecuniary penalty. This provides for the effective monitoring,
investigation and enforcement of a regulatory scheme for family report writers under new
Part IIIAA.
Right to freedom of opinion and expression: Article 19 of the ICCPR
60. Article 19 of the ICCPR provides that everyone shall have the right to freedom of
expression stating 'this right shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice'.
61. It further notes the exercise of the right to freedom of expression 'carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary for respect of the rights or
reputations of others, [or] for the protection of national security or of public order, or of
public health or morals'.
Communications of Details of Family Law Proceedings
62. As outlined above, new Part XIVB restricts public communication of identifiable
information relating to persons connected to family law proceedings. The Part will replace
existing section 121 of the Family Law Act to make the current law clearer and easier to
understand.
63. New Part XIVB imposes a justifiable limit on the right to freedom of expression. This
limitation is necessary to protect sensitive information disclosed in family law proceedings,
to protect the privacy of families and children, and to not discourage families from engaging
in family law proceedings due to fear of public disclosure of sensitive information. Therefore,
this limitation is reasonable, necessary, and proportionate to achieving the legitimate
objective of protecting the privacy of persons involved in proceedings.
Conclusion
64. The Bill is compatible with human rights because it promotes their protection. To the
extent that it may limit human rights, those limitations are reasonable, necessary and
proportionate to achieve the legitimate aims of the Bill and the Family Law Act.
15
NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Family Law Amendment
Act 2023.
Clause 2 - Commencement
2. Item 1 in the table provides that sections 1 to 3 which concern the formal aspects of
the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on
the day on which the Bill receives Royal Assent.
3. Except where specified, the Schedules of the Bill will commence on a single day to be
fixed by Proclamation. However, if the provisions do not commence within a period of six
months after Royal Assent, they will commence on the day after the end of that period.
Clause 3 - Schedules
4. This is a formal clause that enables an Act specified in a Schedule to the Bill to be
amended in accordance with the items set out in the relevant Schedule.
16
Schedule 1--Parenting framework
Part 1 - Best interests of children
Family Law Act 1975
Item 1 - Paragraph 4(1AB)(b)
5. This item repeals paragraph 4(1AB)(b) which applies the definition of 'member of the
family' to paragraphs 60CC(3)(j) and 60CC(3)(k). Paragraphs 60CC(3)(j) and 60CC(3)(k)
are repealed by item 6. This item also inserts a new paragraph 4(1AB)(b), which applies the
definition of 'member of the family' to new paragraph 60CC(3)(a).
6. Schedule 3 of the Bill expands the definition of 'member of the family' for Aboriginal
and Torres Strait Islander children by amending the definition of 'relative' to include persons
who, in accordance with the child's Aboriginal or Torres Strait Islander culture, are related to
the child. The definition of 'member of the family' in the Act only applies to the provisions
specified in subsection 4(1AB).
7. New paragraph 60CC(3)(a) is inserted by item 6, and requires the court, in matters
involving Aboriginal and Torres Strait Islander children, to consider 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 family, and with their community,
culture, country and language.
8. The effect of item 1 is to apply the new expanded definition of 'member of the
family' to new paragraph 60CC(3)(a).
Item 2 - Paragraph 60A(a)
9. This item omits reference to 'and the principles underlying it,' from
paragraph 60A(a).
10. This reflects the repeal of section 60B (Objects of Part and principles underlying it)
and the substitution of new section 60B which does not contain principles (see item 4).
Item 3 - Subdivision B of Division 1 of Part VII (heading)
11. This item omits the word 'principles' from the heading of Subdivision B of Division 1
of Part VII.
12. This reflects the repeal of section 60B and the substitution of new section 60B which
does not contain principles (see item 4).
Item 4 - Section 60B
13. This item repeals section 60B and substitutes a simplified objects provision for
Part VII of the Act.
14. The repeal and substitution of section 60B does not indicate that the repealed objects
and principles are no longer relevant. Rather, the intention is to simplify the objects to better
17
assist with the interpretation of Part VII and avoid duplication with section 60CC which sets
out what the court must consider when determining what is in the best interests of the child.
15. The purpose of new section 60B is to provide context, indicate the legislative purpose
and assist with interpretation.
New section 60B - Objects of Part
16. New section 60B provides that the objects of Part VII are to ensure that the best
interests of children are met, including by ensuring their safety, and to give effect to the CRC.
17. New paragraph 60B(a) outlines that the purpose of the provisions in Part VII is to
ensure that the best interests of children are met, including by ensuring their safety. This
reflects that, when making a parenting order under Part VII, a court must regard the best
interests of the child as the paramount consideration (section 60CA). Paragraph 60B(a)
emphasises that ensuring the best interests of the child are met includes ensuring their safety.
This is intended to make it clear to all users of the Family Law Act that safety is a
fundamental consideration when considering the best interests of the child. To avoid doubt,
ensuring children's safety includes protecting children from physical or psychological harm
from being subjected to, or exposed to, abuse, neglect or family violence.
18. New paragraph 60B(b) confirms, in cases of ambiguity, the obligation on decision
makers to interpret Part VII of the Family Law Act, to the extent its language permits, and
where relevant, consistently with Australia's obligations under the CRC. The CRC may be
considered as an interpretive aid to Part VII of the Family Law Act. To the extent that the
Family Law Act departs from the CRC, the Family Law Act prevails. This provision is not
equivalent to incorporating the CRC into domestic law.
19. A note is included in the new section which provides the user with a reference for
accessing the CRC, as current during the year of drafting.
Item 5 - Section 60C (table item 1, column headed 'Divisions and coverage')
20. This item omits reference to 'principles underlying it, and' from the outline of
Part VII in section 60C.
21. This reflects the repeal of section 60B and the substitution of new section 60B which
does not contain principles (see item 4).
Item 6 - Section 60CC
22. This item repeals the existing section 60CC and replaces it with a new section 60CC.
23. Under section 60CA of the Family Law Act, in deciding whether to make a particular
parenting order in relation to a child, a court must regard the best interests of the child as the
paramount consideration. New section 60CC outlines the matters a court must consider in
determining what is in the best interests of the child.
18
New Section 60CC - How a court determines what is in a child's best interests
24. New section 60CC removes the two-tier hierarchical structure of two 'primary' and
14 'additional' considerations contained in previous section 60CC, and focuses on a core list
of six considerations, with an additional factor for Aboriginal or Torres Strait Islander
children, that are likely to be relevant to a large majority of matters.
25. The ALRC Report recommended that six factors form the basis of the new
section 60CC and that legislative prioritisation be removed. This is intended to address the
complex and repetitive nature of the previous section 60CC, and ensure that matters are given
different weight as appropriate to the particular situation of a child. New section 60CC is
intended to continue to provide the court with a wide discretion to consider the facts in each
case, with a list of non-exhaustive considerations providing guidance.
Determining child's best interests
26. New subsection 60CC(1) provides that, in determining what is in the child's best
interests, the court must consider the matters set out in subsection (2) and, if the child is an
Aboriginal or Torres Strait Islander child, must also consider the matters set out in subsection
60CC(3).
General considerations
27. New subsection 60CC(2) sets out a list of six matters that the court must consider
when determining what is in a child's best interests. The list is intended to provide guidance
about the matters that must be considered by a court, but retain flexibility to adapt to each
child's specific circumstances. The list is non-hierarchical and allows all matters to be taken
into consideration and balanced in light of each situation. For each child, particular matters
will be more relevant than others in arriving at a best interests assessment.
What arrangements will promote safety - new paragraph 60CC(2)(a)
28. New paragraph 60CC(2)(a) provides that the court must consider 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 the care of the child (whether or not a person has parental
responsibility for the child).
29. It is intended that new sub-paragraph 60CC(2)(a)(ii) apply to all people who have
parental responsibility for the child, as well as people who provide day-to-day care for the
child but who may not have parental responsibility. Such people may include, but are not
limited to, parents, step-parents, grandparents, siblings, informal kinship carers, and other
extended family members.
30. New paragraph 60CC(2)(a) requires the court to consider what arrangements, under a
parenting order, would promote the safety of the child and each person who has care of the
child. It is intended that in considering what arrangements promote safety, the court would
19
consider what arrangements would encourage or support a removal, reduction or avoidance
of harm.
31. New paragraph 60CC(2)(a) provides that safety includes safety from family violence,
abuse, neglect, or other harm.
32. Where there are allegations of family violence, abuse, neglect, or other harm affecting
the child and/or those who care for the child, ensuring the safety of parenting arrangements
will be particularly relevant. Appropriately, the existence of any family violence orders
applying to the child or a member of the child's family, and the nature of these orders, will
remain relevant under new paragraph 60CC(2)(a) (as was provided for by previous paragraph
60CC(3)(k)). Section 60CG will continue to stipulate that the court must consider the risk of
family violence, including the requirement to ensure any order is consistent with any family
violence order, to the extent that it is possible to do so consistently with the child's best
interests being the paramount consideration. Existing sections 60CF, 60CH and subsection
69ZX(4) will also continue to allow the court to be informed of matters relating to this factor.
33. 'Family violence' is defined in subsection 4AB(1) as 'violent, threatening or other
behaviour by a person that coerces or controls a member of the person's family (the family
member), or causes the family member to be fearful'. Subsection 4AB(2) lists several
non-exhaustive examples of behaviour that may constitute family violence, including
physical or sexual assault, stalking, verbal abuse, damage to property, harm to pets,
unreasonably denying a person autonomy or liberty, preventing contact with family or friends
and withholding financial support. Subsection 4AB(3) provides that a child is exposed to
family violence if the child sees or hears family violence or otherwise experiences the effects
of family violence. It is intended that the child's safety from family violence includes safety
from exposure to family violence.
34. 'Abuse' in relation to a child is defined in section 4 and covers an assault, including a
sexual assault, of the child, a person involving the child in sexual activity, causing the child
to suffer serious psychological harm, including (but not limited to) when that harm is caused
by the child being subjected to, or exposed to, family violence, or serious neglect of a child.
35. 'Neglect' is not defined in the Family Law Act. However, this Bill adopts the position
of the explanatory memorandum to the Family Law Amendment (Shared Parental
Responsibility) Act 2006, which inserted the term. Consistent with this, the term 'neglect'
within the Family Law Act should be applied by reference to its meaning or understanding in
accordance with state and territory child protection legislation. Further, it is intended to be
limited to situations where a lack of reasonable care is likely to cause unnecessary suffering
or injury to the health of the child.
36. Inclusion of the broad term 'other harm' allows a court-wide discretion to consider
the child's particular situation and to draw conclusions of what is in a child's best interests. It
will allow, for example, consideration of whether certain arrangements are workable in a
family situation where high conflict and poor communication is present (as is often the case
in family law matters that proceed to court). This acknowledges the findings by the
Australian Psychological Society that continuing inter-parental conflict is one of the strongest
single predictors of negative child outcomes. Previously, the parents' current and future
capacity to communicate could be considered when making orders for substantial or
significant time under paragraph 65DAA(5)(c), which is repealed by item 22.
20
Any views expressed by the child - new paragraph 60CC(2)(b)
37. New paragraph 60CC(2)(b) provides that the court must consider any views expressed
by the child. This simplifies previous paragraph 60CC(3)(a) which also required the court to
consider any factors (such as the child's maturity or level of understanding) that the court
thought relevant to the weight it should give to the child's views. The requirement to consider
any views expressed by the child recognises children's agency and their right to be heard in
proceedings that affect them. As with all of the general considerations in subsection 60CC(2),
the court will have discretion to consider those views in light of the child's particular
circumstances and determine how much weight to place on them.
38. The Bill also makes amendments to strengthen this approach by requiring that, where
an ICL has been appointed by the court under section 68L to independently represent a
child's interests, that ICL will now be required to meet with a child to seek their views,
subject to certain exceptions (see Schedule 4).
39. Of note, section 60CD deals with how the court informs itself of views expressed by a
child and section 60CE clarifies that nothing in Part VII permits the court or any person to
require the child to express their views in relation to any matter.
The child's developmental, psychological, emotional and cultural needs - new paragraph
60CC(2)(c)
40. New paragraph 60CC(2)(c) provides that the court must consider the developmental,
psychological, emotional and cultural needs of the child. It is intended that this will allow a
broad range of evidence to be considered concerning a particular child's needs, including
their usual daily routine.
41. In recommending inclusion of this consideration, the ALRC Report cites a position
paper of the Australian Psychological Society that lists considerations that provided
conditions for promoting child wellbeing during and after parental separation3 and noted that
it 'supports developmentally appropriate care and parenting arrangements following
separation' including tailored arrangements that 'take into account the child's developmental
stage, wishes, needs, concerns and capacities to cope with change'. Consideration of the
child's cultural needs is also included, to account for the cultural and linguistic diversity of
Australia's children.
The capacity of each person with parental responsibility to provide for the child's needs -
new paragraph 60CC(2)(d)
42. New paragraph 60CC(2)(d) provides that the court must consider 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.
43. Consideration of 'capacity' is intended to allow broad judicial discretion to consider a
range of matters to assess the ability of each person who has, or is proposed to have, parental
responsibility, to provide for the individual needs of each child. This may require an
3
Australian Psychological Society, Child Wellbeing After Parental Separation: Position Statement (2018).
21
examination of the history of care of the child and the nature of the relationship with each
person (as provided for in previous paragraph 60CC(3)(b) and 60CC(3)(c)). An examination
of the attitude to the child and to the responsibilities of parenthood, demonstrated by each
person (as provided for in previous paragraph 60CC(3)(i)) may also assist the court to make a
conclusion on a carer's capacity to provide for the child's particular developmental,
psychological, developmental, and cultural needs.
The benefit to the child of being able to have a relationship with parents, and other significant
people, where it is safe to do so - new paragraph 60CC(2)(e)
44. New paragraph 60CC(2)(e) provides that the court must consider 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.
45. This consideration recognises the importance of parental relationships, and
relationships with other people who are significant to the child (such as grandparents or
members of a broader kinship group) to a child's wellbeing. Where appropriate and safe,
parenting orders that ensure children benefit from a close and nurturing relationship with
their parents should be made.
46. No one particular arrangement will work for all children or all families, whose needs
are diverse and will change over time. However, where safe and appropriate, most children
benefit from spending time with their parents not only at the weekends and in school
holidays, but also during the school week, and will also benefit from allowing each parent to
be involved in the child's daily routine and occasions and events that are of particular
significance to the child.
47. Paragraph 60CC(3)(e) recognises that while in the majority of cases the courts will
give consideration to the benefit to the child of being able to maintain an existing relationship
with each parent and those significant to the child, in some matters children may not yet have
had the opportunity to form a relationship (such as where parents separate prior to the child's
birth or when the child is very young). In these instances, the court should consider the
benefit to the child of being able to develop a relationship with their parent or other person of
significance to the child.
Anything else that is relevant to the child - new paragraph 60CC(2)(f)
48. New paragraph 60CC(2)(f) provides that the court must consider anything else that is
relevant to the particular circumstances of the child.
49. This factor is a necessary safeguard to account for the myriad of circumstances that
arise in family law proceedings. It is not intended or expected that the court would take into
account trivial or inconsequential matters in determining whether there is 'anything else' that
is relevant to the particular circumstances of the child in making a decision of what is in the
best interests of the child.
Additional considerations - right to enjoy Aboriginal or Torres Strait Islander culture
50. New subsection 60CC(3) sets out additional matters that must be considered when
determining what is in the best interests of an Aboriginal or Torres Strait Islander child.
22
These matters must be considered in addition to the general considerations contained in
subsection 60CC(2)).
51. New paragraph 60CC(3)(a) provides that, in determining what is in the best interests
of an Aboriginal or Torres Strait Islander child, the court must consider the child's right to
enjoy their Aboriginal or Torres Strait Islander culture, by having the opportunity to connect
with, and maintain their connection with, members of their family and with their community,
culture, country and language.
52. Schedule 3 of the Bill expands the definition of 'member of the family' for Aboriginal
and Torres Strait Islander children by amending the definition of 'relative' to include persons
who, in accordance with the child's Aboriginal or Torres Strait Islander culture, are related to
the child. Item 1 of Schedule 1 applies this new expanded definition to new paragraph
60CC(3)(a).
53. Paragraph 60CC(3)(b) provides that, in determining what is in the best interests of an
Aboriginal or Torres Strait Islander child, the court must consider the likely impact of any
proposed parenting order on the child's right to enjoy their Aboriginal or Torres Strait
Islander culture.
54. Having a specific provision for Aboriginal and Torres Strait Islander children, rather
than including it in the list of general considerations in new subsection 60CC(2), is intended
to ensure that the particular needs and cultural rights of Aboriginal and Torres Strait Islander
children are acknowledged and focused on specifically when considering their best interests.
Consent orders
55. New subsection 60CC(4) provides that if the court is considering whether to make an
order with the consent of all the parties to the proceedings (consent orders), the court may,
but is not required to, have regard to all or any of the matters set out in subsections 60CC(2)
or (3). This reflects previous subsection 60CC(5).
Item 7 - Subsection 60CD(1)
56. This item replaces a reference to paragraph 60CC(3)(a) in subsection 60CD(1) (which
sets out how the views of a child are to be expressed) with new paragraph 60CC(2)(b),
reflecting the redraft of section 60CC.
Item 8 - Paragraph 60D(1)(b)
57. This item repeals paragraph 60D(1)(b) and substitutes a new paragraph 60D(1)(b)
providing that where an adviser gives advice or assistance to a person about child-related
matters, the adviser must encourage the person to act in the child's best interests by applying
the considerations set out in subsections 60CC(2) and (3).
58. 'Adviser' is defined in subsection 60D(2) as:
a. a legal practitioner
b. a family counsellor
23
c. a family dispute resolution practitioner, or
d. a family consultant.
59. Previously, section 60D stated that advisers must advise their clients of the
paramountcy of the best interests of the child, including the two primary considerations in
previous section 60CC. This item reflects the simplification of section 60CC (item 6) by
providing that the adviser must encourage the person to act in the child's best interests by
applying the considerations set out in new subsections 60CC(2) and (3).
Item 9 - Paragraph 68N(b)
60. This item omits reference to 'and principles' in paragraph 68N(b).
61. This reflects the repeal of section 60B and the substitution of a new objects section
which does not contain principles (see item 4).
Item 10 - Subsection 68P(2C)
62. This item repeals subsection 68P(2C), which limited the effect of previous
section 60CC on a court making decisions under section 68P about whether it is in a child's
best interests not to receive an explanation of an order or injunction that is inconsistent with a
family violence order. Such a limitation is not necessary in relation to new section 60CC, due
to its non-hierarchical structure.
Item 11 - Paragraph 68S(2)(a)
63. This item omits a reference to previous paragraph 60CC(3)(a) (taking into account a
child's views) in paragraph 68S(2)(a) and replaces it with a reference to new
paragraph 60CC(2)(b), reflecting the redraft of section 60CC in item 6.
Item 12 - Application of provision
64. This item provides that the amendments contained in Part 1 apply to proceedings that
commence on or after the day this item commences.
Part 2 - Parental responsibility
Family Law Act 1975
Item 13 - Subsection 61C(1) (note 2)
65. This item omits the reference to section 61DA in note 2 to subsection 61C(1). This
reflects the repeal of section 61DA by item 16.
24
Item 14 - After section 61C
New section 61CA - Consultation between parents on major long-term issues
66. Item 14 inserts new section 61CA that provides that, subject to court orders, and if it
is safe to do so, parents are encouraged to consult each other about major long-term issues
and, in doing so, to have regard to the best interests of the child.
67. 'Major long-term issues' are defined in subsection 4(1) of the Family Law Act as
issues about the care, welfare and development of the child of a long-term nature and include
(but are not limited to) issues of that nature about:
• the child's education (both current and future)
• the child's religious and cultural upbringing
• the child's health
• the child's name, and
• changes to the child's living arrangements that make it significantly more difficult for
the child to spend time with a parent.
68. New section 61CA is not enforceable but is intended to signal to parents that, in the
absence of court orders, decisions about major long-term issues should be made in
consultation, with the best interests of the child being the paramount consideration.
69. New section 61CA explicitly specifies that the encouragement to consult applies if it
is safe to do so. Nothing in new section 61CA is intended to require or encourage
consultation where that may be unsafe for a parent.
Item 15 - At the end of section 61D
70. Item 15 inserts new subsection 61D(3) that provides that a parenting order that deals
with the allocation of responsibility for making decisions about major long-term issues in
relation to the child may provide for joint or sole decision-making in relation to all or
specified major long-term issues.
71. Subsection 61D(3) reflects existing subsection 64B(3) that provides that a parenting
order may deal with the allocation of responsibility for making decisions about major
long-term issues in relation to the child.
72. New subsection 61D(3) is intended to make it clear that decision-making about major
long-term issues is a component of parental responsibility, and that parenting orders may
provide for joint decision-making or sole decision-making in relation to a major long-term
issue or issues.
Item 16 - Sections 61DA and 61DB
73. This item repeals section 61DA, the presumption of equal shared parental
responsibility. This item also repeals section 61DB that outlines the application of that
presumption after interim parenting orders are made.
25
74. The presumption of equal shared parental responsibility was introduced by the
Family Law Amendment (Shared Parental Responsibility) Act 2006. Matters that end up in
court often involve concerns about family violence, health issues or substance abuse. These
are complex matters which the court must consider very carefully. In these matters, the
court's primary focus should be on making arrangements that meet the best interests of the
children involved. Any presumptions about the allocation of parental responsibility or
consideration of specific time arrangements can detract from a focus on the needs of the
individual child.
75. Recent inquiries into the family law system have concluded that the presumption of
equal shared parental responsibility is commonly misunderstood. An order for 'equal shared
parental responsibility' simply means that parents are required to make joint decisions about
major long-term decisions (for example, in relation to education and health). However, the
majority of parenting matters are settled outside of court, and the ALRC Report and the JSC
Inquiry as well as numerous studies have found that this part of the law is commonly
misinterpreted as creating a right to equal shared time with children which has never been the
case. This means that parents can enter negotiations based on incorrect assumptions about
their entitlements. This can lead to inappropriate arrangements for children and increased
parental conflict.
76. New subsection 61D(3) (item 15) is intended to make it clear that, with the removal of
the presumption of equal shared parental responsibility, the court may still make orders
providing for joint decision-making about major long-term issues, and parties can continue to
agree to such matters between themselves. The court will still be required to consider the
allocation of parental responsibility, and responsibility for decision-making about major
long-term issues, whenever this is raised by one of the parties, or on its own motion.
New Section 61DAA - Effect of parenting order that provides for joint decision-making
about major long term issues
77. New subsection 61DAA(1) provides that 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 to consult each other person in
relation to each such decision and to make a genuine effort to come to a joint decision.
78. New subsection 61DAA(2) makes it clear that this section does not require any other
person to establish that the decision has been made jointly before acting on a decision about a
child communicated by one of the persons that has been allocated responsibility for a major
long-term decision.
79. New section 61DAA reflects relevant parts of previous section 65DAC, which
outlined the effect of a parenting order that provides for shared parental responsibility. This
provision has been relocated to Division 2 - Parental responsibility, to ensure that the
provisions relating to the allocation of parental responsibility are collocated. This is intended
to make the Family Law Act more user-friendly.
80. New subsection 61D(3) (item 15) makes it clear that, with the removal of the
presumption of equal shared parental responsibility, the court may still make orders providing
for joint decision-making about major long-term issues. New section 61DAA outlines the
effect of such orders.
26
New Section 61DAB - No need to consult on issues that are not major long-term issues
81. New section 61DAB reflects previous section 65DAE, and provides that, if a child is
spending time with a person under a parenting order, there is no requirement for the person to
consult a person with parental responsibility for the child about issues that are not major
long-term issues. This provision has been relocated to Division 2 to ensure that provisions
relating to the allocation of parental responsibility are collocated.
Item 17 - At the end of section 61F
82. This item inserts a note at the end of section 61F directing the user to the definition of
'Aboriginal or Torres Strait Islander culture' which is defined in subsection 4(1).
Item 18 - At the end of subsection 63C(2B)
83. This item inserts a note at the end of subsection 63C(2B) directing the user to the
definition of 'major long-term issues' which is defined in subsection 4(1).
Item 19 - Paragraphs 63DA(2)(a) and (b)
84. This item repeals paragraphs 63DA(2)(a) and 63DA(2)(b) that set out obligations of
advisers giving advice to people in connection with the making of a parenting plan. These
paragraphs refer to an obligation to advise the parties about considering specific time-care
arrangements which reflect the time-care arrangements set out in section 65DAA which is
being repealed by item 22.
Item 20 - Subsections 63DA(3) and (4)
85. This item repeals subsections 63DA(3) and 63DA(4) that define the concept of
'substantial and significant time' for the purposes of paragraph 63(DA)(2)(b) which is
repealed by item 19.
Item 21 - At the end of subsection 64B(3)
86. This item adds Note 1 to the end of subsection 64B(3) directing users to new
subsection 61D(3) and new section 61DAA, to make it clear to users that these provisions
also relate to parenting orders dealing with allocation of responsibility for making decisions
about major long-term issues.
87. This item also adds Note 2 to the end of subsection 64B(3) directing users to the
definition of 'major long-term issues' in subsection 4(1).
Item 22 - Subsection 65D(1)
88. This item removes a reference in subsection 65D(1) to section 61DA, which is
repealed by item 16.
Item 23 - Subsection 65D(2)
89. This item removes a reference in subsection 65D(2) to section 61DA, which is
repealed by item 16.
27
Item 24 - Sections 65DAA, 65DAC and 65DAE
90. This item repeals section 65DAA (Court to consider child spending equal time or
substantial and significant time with each parent in certain circumstances). This section
applied when an order of 'equal shared parental responsibility' was made under previous
section 61DA. This section is repealed by item 16.
91. Repealing this section, along with section 61DA, simplifies the way decisions are
made on appropriate arrangements for children, putting the best interests of the child as set
out in new section 60CC at the centre. These provisions were commonly misunderstood as
providing parents with an entitlement to spend equal time with a child. The court can
continue to make orders for equal time or substantial and significant time in the event that it
determines that arrangement is in the best interests of the child, however there is no
requirement to consider these arrangements if they would not be suitable.
92. This item also repeals sections 65DAC and 65DAE, which are replaced by new
sections 61DAA and 61DAB at item 16.
Item 25 - Application provision
93. This item provides that, apart from new section 61CA, the amendments in Part 2
apply in relation to proceedings that commence on or after the day this item commences.
94. Section 61CA applies from the day this item commences. This is because the
provision is not linked to proceedings.
Part 3 - Child related proceedings
Family Law Act 1975
Item 26 - After section 65D
New section 65DAAA - Reconsideration of final parenting orders
95. This item inserts a new section 65DAAA after section 65D.
96. The court has a power in subsection 65D(2) to discharge, vary, suspend or revive
earlier parenting orders. However, the Family Law Act does not specify the circumstances in
which parties may return to the court to seek revision of an order.
97. New section 65DAAA codifies the common law rule established by Rice and Asplund
(1979) FLC 90-725 and elaborated on in subsequent cases, that is, where final parenting
orders are in place the applicant must establish that there has been a significant change of
circumstance since the making of the orders before those orders can be reconsidered.4 The
rule is founded on the notion that continuous litigation over a child or children is generally
not in their best interests.5
4
In the marriage of Rice and Asplund (1978) 6 FamLR 570; SPS and PLS (2008) FLC 93-363; Marsden v
Winch (2013) 50 Fam LR 409; Marsden v Winch (2009) 42 Fam LR 1.
5
Marsden v Winch (2013) 50 Fam LR 409 at [36]; Marsden v Winch (2009) 42 Fam LR 1 at [49].
28
98. New subsection 65DAAA(1) specifies that if a final parenting order is in place, the
court must not reconsider it unless the court has considered whether there has been a
significant change in circumstances since the final order was made and is satisfied that it is in
the best interest of the child for the order to be reconsidered.
99. Subsection 65DAAA(1) is intended to apply to any reconsideration of a final
parenting order, other than a child maintenance order.
100. New subsection 65DAAA(2) includes a list of matters that a court may have regard to
in weighing up whether it would be in the child's best interests to reconsider a final parenting
order. This list is modelled on the case law and is intended as additional guidance for litigants
and the courts about the sorts of matters that may be relevant, without being limiting or
prescriptive. The court may have regard to any other factors in considering whether it is in
the child's best interests to reconsider the final parenting order.
101. For avoidance of doubt, the Government does not intend for this subsection to
displace the best interests considerations contained in section 60CC (see item 6).
102. New subsection 65DAAA(3) provides that the court may reconsider a parenting order
with the agreement or consent of all the parties to the final parenting order. This may occur,
for example, in circumstances where both parties acknowledge that final parenting orders
have become plainly ineffective or impractical over time. It is also intended to allow parents
to include consent at the time of making of final parenting orders that the orders can be
revisited upon the happening of a particular event or after a particular period of time has
elapsed, which may enhance parties' willingness to resolve their disputes.
103. Additionally, subsection 65DAAA(4) provides that the failure of a court to comply
with subsection 65DAAA(1) does not affect the validity of any order made by the court.
Item 27 - Application provision
104. This item provides that the amendments made by this Part apply 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. .
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Schedule 2--Enforcement of child-related orders
Part 1 - Enforcement of child related orders
Division 1 - Main amendments
Child Support (Assessment) Act 1989
Item 1 - Subsection 100(2)
105. This item amends subsection 100(2) of the Child Support (Assessment) Act 1989 (Cth)
to reflect the new title of Division 13A of Part VII of the Family Law Act, 'Orders in
proceedings relating to contraventions of child-related orders'.
Family Law Act 1975
Item 2 - Subsection 4(1) (definition of alleged contravention and alleged offender)
106. This item amends the definitions of 'alleged contravention' and 'alleged offender' in
subsection 4(1) to reflect the relocation of Subdivision D to new Subdivision B of
Division 14 of Part VII.
Item 3 - Subsection 4(1) (definition of applied provisions)
107. This item repeals the definition of 'applied provisions' from subsection 4(1) to reflect
the removal of community service orders as an available sanction from Division 13A of
Part VII. Community service orders were rarely used as a sanction and their removal aids the
simplification of the Division.
Item 4 - Subsection 4(1)
108. This item inserts a definition of 'child-related order' into subsection 4(1), directing
the user to the meaning set out in new subsection 70NBA(2) (see further below).
Item 5 - Subsection 4(1) (definition of community service order)
109. This item repeals the definition of 'community service order' from subsection 4(1).
This reflects the repeal of subsection 70NFC(3), to which the definition refers.
Item 6 - Subsection 4(1)
110. This item inserts a definition of 'contravene a child-related order' into subsection
4(1), directing users to the meaning set out in section 70NAC (see further below).
Item 7 - Subsection 4(1)
111. This item repeals the existing definitions for 'contravened'; 'order under this Act
affecting children'; and 'primary order' from subsection 4(1).
112. The definition of 'contravened' has been replaced by contravene in subsection 4(1)
(see item 6).
30
113. The definition of 'order under this Act affecting children' has been replaced in new
Division 13A by child-related order (see item 4).
114. The definition of 'primary order' has been removed from subsection 4(1) to
consolidate and simplify the use of definitions pertaining to child-related orders.
Item 8 - Subsection 4(1)
115. This item inserts a definition of 'reasonable excuse for contravening a child-related
order' into subsection 4(1), directing users to the meaning set out in section 70NAD (see
further below).
Item 9 - Subsection 4(1) (definition of reasonable excuse for contravening)
116. This item repeals the previous definition of 'reasonable excuse for contravening' from
subsection 4(1), to give effect to item 8.
Item 10 - At the end of Part II
New Division 5--Post-separation parenting programs
Section 10PA Admissibility of communications in post-separation parenting programs
117. This item adds a new Division at the end of Part II containing new section 10PA.
Section 10PA replicates previous section 70NEF, with the addition of a note.
118. New subsection 10PA(1) provides that evidence of anything said, or any admission
made, by a person attending a post-separation parenting program is not admissible in any
court, or any proceedings. New subsection 10PA(2) provides that evidence in the form of an
adult's admission of abuse or risk of abuse to a child under 18 years, or a disclosure by a
child indicating that the child has been abused or is at risk of abuse, is not excluded by
operation of subsection 10PA(1).
119. A note has been added beneath subsection 10PA(2), to alert users of the legislation to
the fact that a court may make an order directing a person to attend a post-separation
parenting program under subsection 65LA(1) or 70NBD(1).
Item 11 - Section 60C (table item 6)
120. This item repeals the outline of Division 6 of Part VII contained in section 60C (table
item 6) and substitutes a new outline.
121. The new outline reflects the amendments made to Division 6, including the
consolidation of previous Subdivision C into new Division 13A and the relocation of
Subdivision D to Division 14 of Part VII.
Item 12 - Section 60C (table item 13A)
122. This item repeals the outline of Division 13A of Part VII contained in section 60C
(table item 13A) and substitutes a new outline. The new outline reflects the simplified new
Division 13A inserted by item 21.
31
Item 13 - Section 60C (table item 14)
123. This item repeals the outline of Division 14 of Part VII contained in section 60C and
substitutes a new outline. The new outline reflects amendments made to Division 14,
including the relocation of 'Subdivision D - Dealing with people who have been arrested'
from Division 6 to Subdivision B of Division 14 of Part VII.
Item 14 - Subsection 63F(3) (paragraph (a) of the note)
124. This item omits 'Subdivisions C, D and E' from paragraph (a) of the note to
subsection 63F(3) and substitutes 'Subdivision E'. This reflects the repeal of Subdivisions C
and D of Division 6 (see item 18).
Item 15 - Paragraphs 65A(1)(b) and (c)
125. Section 65A provides an outline of what Division 6 of Part VII does. Item 15 repeals
the references to paragraphs 65A(1)(b) and 65A(1)(c) to reflect the relocation of Subdivisions
C and D of Division 6 (see item 18).
Item 16 - Subsection 65D(3)
126. This item repeals subsection 65D(3) (not including the notes) due to the repeal of the
paragraph to which it refers, paragraph 70NEB(1)(c).
Item 17 - Subsection 65D(3) (notes 1 and 2)
127. This item removes 'or for the proceedings under Subdivision E of Division 13A of
Part VII, or both,' from notes 1 and 2 of subsection 65D(3). This reflects the restructure of
Division 13A and the removal of previous Subdivision E.
Item 18 - Subdivisions C and D of Division 6 of Part VII
128. This item repeals Subdivisions C and D of Division 6 of Part VII.
129. Consistent with the intention to simplify and streamline key parts of the Family Law
Act, previous 'Subdivision C - General obligations created by certain parenting orders' has
been consolidated into the new Divisions 13A and 14 of Part VII.
130. Sections 65M, 65N, 65NA, 65P and 65Q from previous Subdivision C of Division 6
have been redrafted and are now reflected in new sections 70NAC and 70NDA of
Division 13A of Part VII (see below).
131. Subdivision D has been substantively replicated in new Subdivision B of Division 14
of Part VII (see item 24). This Subdivision applies if a person is arrested under a warrant
issued under subsection 70NDA(1) (warrants for arrest of persons alleged to have
contravened a child-related order), or where a person is arrested without warrant under a
recovery order. It sets out the obligations of the arresting person, and the obligations of the
court where there is an application before it to deal with an alleged contravention; where
there is an application before another court; or where there is no application before any court.
32
Item 19 - Section 67Q (note 1)
132. This item omits 'Subdivision D of Division 6' from section 67Q (note 1) and
substitutes 'Subdivision B of Part 14'. This reflects the removal of Subdivision D from
Division 6 and its inclusion in a new Subdivision in Part 14 (see item 18).
Item 20 - Subsections 69ZH(2) and (4)
133. This item omits 'Subdivisions C, D and E' from subsections 69ZH(2) and (4) and
substitutes 'Subdivision E'. This reflects the removal of Subdivisions C and D from
Division 6 (see item 18).
Item 21 - Division 13A of Part VII
New Division 13A--Orders in proceedings relating to contraventions of child-related
orders
134. This item repeals existing Division 13A of Part VII and replaces the Division with a
redrafted Division which is intended to be simpler and easier to apply.
135. The Division is divided into four Subdivisions, reduced from six in the Division's
current form. The four new Subdivisions are:
• Subdivision A - Preliminary
• Subdivision B - Orders relating to contraventions of child-related orders
• Subdivision C - Further provisions relating to bonds and imprisonment, and
• Subdivision D - Miscellaneous.
136. For the purposes of simplifying the structure of the Division, the Division no longer
separately provides for circumstances where the court considers the contravention to be 'less
serious' or 'more serious'. Instead, the court has discretion to tailor its response to match the
gravity of the contravention, while still being required to consider a number of factors in
weighing up the seriousness of any given contravention, including the current and previous
behaviour of the parties. This approach intends to simplify the law, while retaining the court's
discretion to consider the circumstances of each case.
137. Under the Division's new structure, the penalties and costs provisions are centralised
to improve readability. Currently these provisions are repeated throughout the Division
against the different outcomes that can result from a contravention matter.
138. Each provision in the redraft is placed alongside the existing equivalent provisions
(where applicable) of the Family Law Act, for ease of reference.
New section Summary Previous
provision in the
Act
70NAA Provides a simplified outline of Division 13A 70NAA
33
New section Summary Previous
provision in the
Act
70NAB Outlines the objects of Division 13A N/A
Outlines the meaning of to 'contravene' an order and the 70NAC, 65M,
70NAC
circumstances in which a person contravenes an order 65N, 65NA, 65P
Provides the meaning of 'reasonable excuse' for
70NAD 70NAE
contravening an order
Provides the standard of proof to be applied in determining
70NAE 70NAF
matters in proceedings
70NBA(2) is
based on the
definition of
70NBA Outlines when orders can be made under this Division order under this
Act affecting
children in
section 4
70NDB,
The court may make a make-up time parenting order at
70NBB 70NEB(1)(b),
any stage of the proceedings
70NFB(2)(c)
The court may vary or suspend a parenting order at any
70NBC 70NBA
stage of the proceedings
The court may require one or more parties to attend a
70NEB(1)(a),
70NBD post-separation parenting program, or other specified
70NED, 70NEG
program
New section
Inadmissibility of evidence of disclosures by persons
10PA (see 70NEF
attending a post-separation parenting program
item 10)
70NCA,
70NCB,
The court may make, or in certain circumstances must 70NDC,
consider making, a costs order against the complainant 70NEB(1)(f)
70NBE where the contravention allegation is not substantiated or and
against the respondent where a contravention is 70NEB(1)(g),
established without reasonable excuse 70NFB(2) (g)
and
70NFB(2)(h)
34
New section Summary Previous
provision in the
Act
Outlines orders the court can make where a contravention 70NEB(1),
70NBF
is established without a reasonable excuse 70NFB(2)
70NFB(2)(a),
Provisions relating to the making, enforcement, variation
Removed 70NFC, 70NFD,
and discharge of community service orders
70NFF
Provides conditions for the court to require a person to
70NCA 70NEC, 70NFE
enter into a bond
70NCB Outlines the procedure for the court to enforce a bond 70NECA
Provides conditions for the court to make an order
70NCC 70NFG
imposing a sentence of imprisonment
Outlines the powers of court in relation to the imprisoned
70NCD 70NFG
person, including release and suspension of sentence
Outlines the rules relating to contravention of child
70NCE 70NFB(4)
maintenance orders and child support
Outlines the circumstances where the court may issue a
70NDA 65Q
warrant for the arrest of an alleged offender
Outlines the relationship between Division 13A and other
70NDB 70NFH
laws
Nothing in this Division limits the operation of
70NDC 70NFJ
section 105, which deals with enforcement generally
Division 13A--Orders in proceedings relating to contraventions of child related orders
Subdivision A--Preliminary
New section 70NAA - Simplified outline
139. Section 70NAA is a simplified outline for the redrafted Division 13A of Part VII.
New section 70NAB - Objects
140. New section 70NAB provides five principal objects for the new Division. This new
provision clarifies that the compliance regime serves a number of different objectives,
including supporting parties to comply with parenting orders and to resolve any difficulties
that have contributed to non-compliance. Other objectives of the Division include upholding
the authority of the court and imposing appropriate sanctions on a person who seriously or
repeatedly contravenes child-related orders without having a reasonable excuse. Consistent
35
with the objects of Part VII (Children) as a whole, the overarching object of new Division
13A is to meet the best interests of children.
New section 70NAC - Meaning of contravene a child-related order
141. New section 70NAC provides for the circumstances where a person contravenes a
child-related order. Previous sections 65M to 65P, which set out general obligations created
by parenting orders, are centralised in new section 70NAC. The new section performs an
equivalent function to the previous provisions without changing the underlying policy.
142. New subsection 70NAC(1) provides a general meaning for when a person
contravenes a child-related order, largely replicating previous section 70NAC. New
paragraph 70NAC(1)(a) provides that a person (other than a child) to whom an order applies,
contravenes that order if they intentionally fail to comply, or make no reasonable attempt to
comply, with the order. New paragraph 70NAC(1)(b) provides that a person who
intentionally prevents compliance by a person to whom an order applies, or who aids or abets
such a contravention, would contravene an order.
143. A note to subsection 70NAC(1) highlights that a parenting order may be subject to a
later parenting plan by virtue of section 64D. If such a plan is in place, conduct that would
otherwise contravene such an order may not constitute a contravention because of the terms
of the later parenting plan.
144. New subsection 70NAC(2) sets out the circumstances where a person contravenes a
child-related order. The circumstances detailed in the table centralises specific types of
contraventions that are captured across several previous provisions (sections 65M, 65N,
65NA and 65P). This is intended to aid readability for users of the Family Law Act.
145. Subject to new section 70NAD (see below) which outlines what constitutes a
reasonable excuse for the contravention of a child-related order (e.g. safety), there are five
circumstances in which a person may contravene a child-related order.
146. The first circumstance is where an order deals with whom a child is to live with and a
person intentionally removes the child from the care of another person, or refuses or fails to
deliver or return the child to another person.
147. The second circumstance is where an order deals with whom a child is to spend time
with and a person intentionally hinders or prevents another person from spending time with
the child. This could include interfering with a person and the child benefitting from spending
time with each other under the order.
148. The third circumstance is where an order deals with whom a child is to communicate
with and a person intentionally hinders or prevents another person from communicating with
a child. This could include interfering with the communication that a person and the child are
supposed to have with each other under the order.
149. The fourth circumstance is where an order allocates parental responsibility for a child
to another person and a person intentionally hinders or prevents the carer from discharging
that responsibility. This could include interfering with the exercise of performances of any of
the powers, duties or responsibilities that the carer has under the order.
36
150. The fifth circumstance is where the order deals with the maintenance of a child and
the person contravenes the order where the person fails to pay maintenance or prevents the
maintenance for the child.
New section 70NAD - Meaning of reasonable excuse for contravening a child-related
order
151. New section 70NAD sets out what constitutes a reasonable excuse for contravening a
child-related order. This provision is intended to simplify previous section 70NAE without
altering the policy intent.
152. New subsection 70NAD(1) provides that a person has a reasonable excuse for
contravening a child-related order if the person did not understand the obligations of the
order, and the court considers the person ought to be excused for the contravention. New
subsection 70NAD(2) provides that if the court decides a person had a reasonable excuse
under subsection 70NAD(1), the court must explain to the person the obligations imposed by
the order, and the consequences for further contraventions, in language likely to be readily
understood by the person.
153. New subsection 70NAD(3) provides that a person has a reasonable excuse for
contravening a child-related order if the person reasonably believed the contravention was
necessary to protect the health and safety of the person, the child or any other person, and the
contravention was no longer than necessary to protect the health and safety of that individual.
154. New subsection 70NAD(4) provides that the new section does not limit the
circumstances in which a person may have a reasonable excuse for contravening a
child-related order.
New section - 70NAE Standard of proof
155. New section 70NAE provides that the standard of proof to be applied in determining
matters in proceedings under this Division is proof on the balance of probabilities, except for
new paragraph 70NBF(1)(d). A note is included in the new section that states that the
standard of proof to be applied to orders made under paragraph 70NBF(1)(d) is proof beyond
reasonable doubt. Paragraph 70NBF(1)(d) deals with the court's power to order a fine or a
term of imprisonment. A higher standard of proof for court orders imposing the most serious
sanctions under the Division is preserved.
Subdivision B--Orders relating to contraventions of child-related orders
New section 70NBA - Court may make orders in proceedings relating to contravention
of child-related orders
156. Subsection 70NBA(1) sets out the orders that a court exercising jurisdiction in
proceedings under the Family Law Act may (or must in certain circumstances) make, on
application from a party, if an issue arises in the proceedings about whether a person (the
respondent) has contravened a 'child-related order' (which is defined in new subsection
70NBA(2)).
37
157. A note is included under subsection 70NBA(1) to clarify that the court does not need
to find the respondent contravened a child-related order to make certain orders under this
Division. The note clarifies that a court may impose the following three sanctions at any stage
of the proceedings:
• a make-up time parenting order under new section 70NBB
• an order varying or suspending a parenting order under new section 70NBC, and
• an order requiring the respondent and any other party to the proceedings to attend a
post-separation parenting program under new section 70NBD.
158. Flexibility to order these measures is intended to allow the court to make timely
orders to address the underlying cause of the contravention. This flexibility complements the
operation of the National Contravention List (which commenced on 1 September 2021)
established by the FCFCOA. The list aims to help achieve timely outcomes in contravention
proceedings and support future compliance with parenting orders. Orders made by registrars
are reviewable by a judge.
159. New subsection 70NBA(2) sets out the types of orders that are 'child-related orders',
reflecting the previous definition of 'order under this Act affecting children' which is
repealed under item 7. The purpose of this amendment is to clarify what constitutes a
'child-related order'. Division 13A applies primarily to the contravention of parenting orders,
which are included in the definition of 'child-related order'. The other sanctions covered are
orders that often apply in conjunction with parenting orders and therefore it is appropriate
that contravention of these orders are also dealt with under this Division. These orders are:
injunctions under section 68B or section 114 (if it is for the protection of the child), bonds
that may relate to parenting orders or order for contravention without reasonable excuse and
orders for subpoenas issued under the applicable Rules of Court during proceedings relating
to these particular orders.
New section - 70NBB Make-up time parenting orders
160. New section 70NBB centralises several existing provisions (sections 70NDB, 70NEB
and 70NFB) that provide the court with the power to make a make-up time parenting order.
The underlying policy intent is not to 'compensate' a parent for lost time, but rather to allow
the court to order additional care time on a temporary basis to rebuild a relationship between
a child and a parent.
161. New subsection 70NBB(1) provides that where 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 new subsection 70NBA(1), then the court may make an order that a child spend (make-up)
time with that person.
162. Note 1 under subsection 70NBB(1) clarifies that parenting orders are made under
Division 6. Note 2 under this subsection highlights that the court may also make orders for
the respondent to compensate another person for reasonable expenses incurred as a result of a
child not spending time with that person under new paragraph 70NBF(1)(c).
163. New subsection 70NBB(2) clarifies that the court may make a make-up time
parenting order at any time during proceedings without necessarily finding a contravention.
The reflects the situation that existed previously under section 70NDB. This allows the court
flexibility to use these orders and complements the operation of the registrar-led National
38
Contravention List in the FCFCOA. However, it should be noted that by virtue of section
60CA (and as reinforced in new section 70NAB, the Objects of Division 13A), in deciding
whether to make a particular parenting order, the best interests of the child are paramount.
The best interests of the child are set out in section 60CC and include considerations of
whether orders promote the child's safety. In considering what order to make, a court is also
obliged to consider whether the order is consistent with any family violence order under
section 60CG.
164. New subsection 70NBB(3) clarifies that the quantity of time specified in the make-up
time parenting order does not need to be the same amount as the time missed. This reflects
that the underlying purpose of such orders is to ensure the relationship between the child and
the relevant adult has not been impacted by the time missed.
New section 70NBC - Variation and suspension of child-related orders that are
parenting orders
165. New section 70NBC provides the family law courts with the flexibility to vary or
suspend a child-related order that is a parenting order at any stage of a contravention
proceeding. It simplifies and replaces previous section 70NBA of the Family Law Act. The
purpose of new section 70NBC is to assist parties to resolve difficulties associated with
parenting orders which have contributed to non-compliance, acknowledging that many
contravention applications are brought because circumstances have changed and the existing
orders are no longer appropriate. As with new section 70NBB, new section 70NBC is also
intended to complement the operation of the registrar-led National Contravention List in the
FCFCOA.
166. New subsection 70NBC(1) provides the family law courts with the power to vary a
parenting order at any stage of a contravention proceeding and replaces existing
subsection 70NBA(1) of the Family Law Act. The effect of this subsection is to clarify that
the family law courts have a broad and flexible power to vary a child-related order at any
time, without necessarily making a finding as to whether there has been a contravention.
However, it should be noted that by virtue of section 60CA (and as reinforced in new
section 70NAB, the Objects of Division 13A), in deciding whether to make a particular
parenting order, the best interests of the child are paramount. The best interests of the child
are set out in section 60CC.
167. New subsection 70NBC(2) provides that new subsection 70NBC(1) does not limit the
circumstances in which a court having jurisdiction under the Family Law Act may vary a
parenting order. This replaces previous subsection 70NBA(3) and substitutes the general term
'primary order' with the more specific term 'child-related order that is a parenting order'.
This terminology change assists users of the Family Law Act to clarify that only parenting
orders may be varied under this section. This change is also consistent with the broader
terminology change throughout Division 13A which replaces 'primary order' with
'child-related order'.
168. New subsection 70NBC(3) relates to the suspension of child-related orders that are
parenting orders. This new subsection clarifies that the court may suspend for a specified
period of time the operation of, or part of the operation of a parenting order at any stage of
the proceedings.
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169. Items 34 and 35 (below) insert notes at the end of subsection 70NBC(1) and
subsection 70NBC(3) which cross-references new section 65DAAA, to clarify that a court
must not reconsider a final parenting order (other than a child maintenance order) unless the
court has considered and is satisfied with the matters contained in that section. New
section 65DAAA sets out the matters the court must consider when varying a parenting order,
codifying previous case law (see item 24).
New section 70NBD - Post-separation parenting programs
170. New section 70NBD empowers the family law courts to order attendance at a
post-separation parenting program, or other specified program. It also imposes obligations on
the principal executive officer of the court and the provider of the program to support
compliance with these orders. New section 70NBD amalgamates and simplifies existing
sections 70NEB, 70NED and 70NEG of the Family Law Act. The effect of this section is to
assist parties in addressing and resolving issues that affect carrying out of their parenting
responsibilities by requiring that the respondent (and any other party) attend a relevant
program.
171. New subsection 70NBD(1) clarifies that the family law courts may order the
attendance of the respondent and any other party to the proceedings (if appropriate) at a
post-separation parenting program or other specified program. This replaces existing
paragraph 70NEB(1)(a) of the Family Law Act.
172. However, new subsection 70NBD(1) introduces the policy that attendance at a
program can be ordered by the court at any time. This is a minor policy change and aligns the
power to order attendance at a program with the power to vary and suspend a parenting order
at any time (see new section 70NBC). New subsection 70NBD(1) effectively gives ability to
the family law courts to order any party's attendance at a program, regardless of the stage of
proceedings and whether a contravention is eventually established.
173. Note 1 under new subsection 70NBD(1) refers to section 11E and functions as a
signpost which clarifies that the family law courts must consider seeking the advice of a
family consultant about the services appropriate to the parties' needs before making an order
under new section 70NBD. This note emphasises the importance of family law courts giving
due consideration to advice of a family consultant to ensure that any orders made are
appropriately tailored to the unique circumstances of the parties.
174. Note 2 under new subsection 70NBD(1) provides a cross-reference to new
section 10PA of the Family Law Act and clarifies that things said or admissions made by a
person in a post-separation parenting program are generally not admissible in any court or in
any proceedings before a person authorised by a Commonwealth, state or territory, or by the
consent of the parties to hear evidence. New section 10PA replaces existing section 70NEF of
the Family Law Act.
175. New subsection 70NBD(2) provides that the principal executive officer of the family
law courts must advise the provider of the program of the order as soon as reasonably
practicable after it is made under subsection 70NBD(1). This new subsection replaces
existing subsection 70NEB(3) of the Family Law Act. The effect of new
subsection 70NBD(2) is to ensure that the provider of the program is aware of the orders that
parties must comply with.
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176. New subsection 70NBD(3) imposes a duty on the provider of the program to inform
the family law courts, and any other party to the proceedings, if a person is unsuitable to
attend the program (paragraph (a)) or fails to attend all or part of it (paragraph (b)). The effect
of new subsection 70NDB(3) is to ensure the court is informed of a party's non-attendance at
a program. New subsection 70NBD(3) replaces previous section 70NED of the Family Law
Act and modifies the existing language for simplicity and clarity.
177. New subsection 70NBD(4) empowers the family law courts to make an order that it
considers appropriate if a person ordered to attend a program is assessed as being unsuitable
to attend, or fails to attend any part of the program. This new subsection replaces previous
section 70NEG of the Family Law Act. The effect of new subsection 70NBD(4) is that any
order can be made by the court for failing to attend a program, except for orders made under
new paragraph 70NBF(1)(d) which includes imposing a fine or a term of imprisonment.
178. New subsection 70NBD(5) provides that if the family law courts have 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 new subsection 70NBD(4).
New section 70NBE - Costs orders
179. New section 70NBE provides the family law courts with a central power to order
costs against a complainant which can be made at any stage during proceedings. It has been
designed to simplify Division 13A by reducing duplication and improving readability.
180. In particular, this new section centralises and consolidates the previous costs
provisions (in sections 70NCB, 70NDC, 70NEB and 70NFB) while retaining the existing
underlying policies, namely the court should consider:
• a costs order against the complainant where there are unsubstantiated allegations of
contravention, and
• a costs order against the respondent where there has been a contravention without
reasonable excuse.
181. New subsection 70NBE(1) provides guidance for when the family law courts may
make a costs order against the complainant. It replaces previous section 70NCA and
subsections 70NCB(1) and 70NDC(1). New subsection 70NBE(1) effectively allows a family
law court to make a costs order when the complainant has alleged that the respondent
contravened a child-related order (paragraph (a)) and either: the court does not find that the
respondent contravened the child-related order; or the court finds that the respondent had a
reasonable excuse for contravening the child-related order (paragraph (b)). The effect of new
subsection 70NBE(1) is to deter parties from making unreasonable contravention applications
for minor breaches of child-related orders.
182. New subsection 70NBE(2) provides circumstances where the family law courts must
consider making a costs order against a complainant. It replaces previous subsections
70NCB(2) and 70NDC(2). This subsection requires the court to turn its mind to making a
costs order if the complainant has previously alleged, in proceedings under the Family Law
Act or any other Act, that the respondent contravened a child-related order (paragraph (a))
and: the court did not find that the child-related order was contravened; or found that the
order was contravened by the respondent but did not make a related order under
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Division 13A (paragraph (b)). The effect of new subsection 70NBE(2) is to deter parties from
making repeated contravention applications for minor breaches which aim to harass or
inconvenience the other party.
183. New subsection 70NBE(3) provides circumstances where the family law courts must
not make a costs order. This section obliges the court to not make the costs order if it finds
that the respondent had a reasonable excuse for contravening the child-related order
(paragraph (a)) and has made (or will make) a make-up time parenting order under new
section 70NBB in respect of the contravention (paragraph (b)).
184. New subsection 70NBE(4) provides that a court must make a costs order against a
person found to have contravened an order without reasonable excuse. This subsection
replaces previous paragraphs 70NEB(1)(f) and 70NEB(1)(g), subsection 70NFB(1) and
paragraphs 70FB(2)(g) and 70FB(2)(h). This provision is slightly broader than the existing
requirement at paragraph 70NFB(1)(a) that currently only applies if a 'more serious'
contravention is found. The new provision requires the family law courts to make a costs
order in these circumstances, regardless of the seriousness of the contravention, unless
satisfied it is not appropriate to do so. The effect of new subsection 70NBE(4) is to uphold
the authority of the court and deter non-compliance with court orders where the respondent
does not have a reasonable excuse to do so.
New section 70NBF - Orders where contravention established without reasonable
excuse
185. New section 70NBF provides the family law courts with powers to make a variety of
orders in circumstances where it has been found that the respondent has contravened a
child-related order without having a reasonable excuse. It replaces previous
subsections 70NEB(1) and 70NFB(2) and does not separately provide for circumstances
where the court considers the contravention to be 'less serious' or 'more serious'. This
departs from the structure of existing Division 13A, which distinguished between the
seriousness of the contraventions by separating appropriate orders into 'less serious' and
'more serious' which added to complexity of the previous Division. The effect of new section
70NBF is to provide the family law courts with increased discretion to tailor orders to the
gravity of the contravention, while maintaining the obligation to consider several relevant
factors when considering the seriousness of the contravention.
186. New subsection 70NBF(1) outlines the orders available for the family law courts to
make if it is found that the respondent has contravened a child-related order without a
reasonable excuse. This replaces existing subsections 70NEB(1) and 70NFB(2) of the Family
Law Act. The effect of this subsection is to centralise and amalgamate the orders already
available under Division 13A in order to improve its clarity for users.
187. New subsection 70NBF(1) provides that if the family law courts are satisfied on the
balance of probabilities that a contravention has occurred without a reasonable excuse, the
court may make any of the following orders:
• the respondent entering into a bond under new section 70NCA (paragraph (a))
• a fine not exceeding 10 penalty units if the respondent fails to enter into the bond
(paragraph (b))
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• the respondent compensating an affected person for expenses reasonably incurred as a
result of contravention (paragraph (c)). New paragraph 70NBF(c) is intended to cover
types of situations where airfares or other travel tickets are unable to be used as a
result of a person not making the child available for time with the other parent under a
child-related order. This is not intended to include court costs which are dealt with
separately. These types of orders are already available to the court under existing
paragraphs 70NEB(1)(e) and 70NFB(2)(f), or
• an order imposing a fine not exceeding 60 penalty units (subparagraph (i)) or a term
of imprisonment (subparagraph (ii)), if the family law courts are satisfied beyond
reasonable doubt that the respondent contravened the order without reasonable
excuse. These orders are already available to the court under previous
subsection 70NFB(1) and they enable the court to address contraventions that are of a
more serious nature, including where there are repeated breaches of orders, in a way
that upholds the authority of the court, deters future contraventions and imposes a
proportionate sanction on the respondent. The higher standard of proof (beyond
reasonable doubt) under paragraph 70NBF(1)(d) reflects the more serious nature of
the sanctions available to the court under this provision.
188. Note 1 under new subsection 70NBF(1) directs users to new subsection 70NBE(4)
which provides that the family law courts must make a costs order against the respondent,
unless the court is satisfied that it is not appropriate to do so in the circumstances. This
cross-reference assists users of the Family Law Act to clarify that in addition to being subject
to an order under subsection 70NBF(1), the respondent would also likely be subject to a costs
order. This reflects the slightly broadened application under new subsection 70NBE(4), in
favour of a costs order being made against a person found to have contravened an order
without reasonable excuse, regardless of the seriousness of the contravention.
189. Note 2 under new subparagraph 70NBF(1)(d)(ii) direct users to new
subsections 70NBF(4) and 70NCC(2) and new section 70NCE which sets out limits on how
and when the court may impose a term of imprisonment on the respondent. These
cross-references assist users to navigate and understand Division 13A by drawing their
attention to other sections which closely relate to new subparagraph 70NBF(1)(d)(ii).
190. New subsection 70NBF(2) provides that when making an order under new
subsection 70NBF(1), the family law courts must have regard to the likely effects of making
the order on any child or any other person (paragraph (a)) in addition to the seriousness of the
contravention (paragraph (b)). The effect of new subsection 70NBF(2) is to ensure that the
court takes these significant factors into account before making an order against the
respondent under new subsection 70NBF(1). This also clarifies that the court is obliged to
determine the most appropriate order on a case-by-case basis.
191. New subsection 70NBF(3) provides the matters that must be taken into account by the
court in determining the seriousness of the contravention under new paragraph 70NBF(2)(b).
Those matters are:
• whether a court has previously found that the respondent has contravened a
child-related order without a reasonable excuse (paragraph (a))
• whether the respondent behaved in a way that showed a serious disregard of their
obligations under the child-related order (paragraph (b)), and
43
• the behaviour of any person with whom the child is to live or spend time under the
child-related order (paragraph (c)).
192. This new subsection reflects concepts that existed in the previous version of
Division 13A which required the court to consider various aspects of past behaviour to make
an assessment about the seriousness of the contravention and which order was the most
appropriate in the circumstances of the case. This subsection also clarifies that these factors
are not intended to limit any other matters the court may consider under new
paragraph 70NBF(2)(b).
193. New subsection 70NBF(4) provides that the court may impose a term of
imprisonment under new subparagraph 70NBF(1)(d)(ii), only if the court is satisfied, taking
into account all the circumstances of the case, that it would be inappropriate to deal with the
contravention of a child-related order in any other way as described under new
subsection 70NBF(1). This makes it clear that imposing a term of imprisonment is the last
resort to take under the particular circumstances of the case if the contravention of the
child-related order cannot be dealt with by other orders as described in new paragraphs
70NBF(1)(a), 70NBF(1)(b) and 70NBF(1)(c).
194. Under previous Division 13A, the court also had the power to order a community
service order. Community service orders were rarely used as a sanction and their removal
aids simplification of the Division.
Subdivision C--Further provisions relating to bonds and imprisonment
New section 70NCA - Matters relating to bonds
195. New section 70NCA provides for the type of bonds the court may require a person to
enter into as a sanction for contravening a child-related order under new
paragraph 70NBF(1)(a). This consolidates and replaces previous sections 70NEC and
70NFE, aiding the user's understanding of the practicalities of using bonds as a sanction.
New section 70NCA also substitutes the word 'person' (found in existing sections 70NEC
and 70NFE) with 'respondent'. The effect of this terminology change is to clarify for the
reader that bonds can only be ordered against the respondent in contravention proceedings.
196. New subsection 70NCA(1) outlines the purpose of new section 70NCA, which sets
out the requirements relating to bonds that the family law courts may require the respondent
to enter into under new paragraph 70NBF(1)(a). This replaces previous
subsections 70NEC(1) and 70NFE(1).
197. New subsection 70NCA(2) provides that the court must specify the period of the
bond, which is limited to 2 years. This replaces previous subsections 70NEC(2) and
70NFE(2).
198. New subsection 70NCA(3) provides that the court must determine if the bond is to be
with or without surety and security. This replaces previous subsections 70NEC(3) and
70NFE(3).
199. New subsection 70NCA(4) provides the conditions that may be imposed on the
respondent by a bond. This replaces previous subsections 70NEC(4) and 70NFE(4). The
44
conditions (without limitation) that may be imposed under new subsection 70NCA(4) include
requiring the respondent: to attend a post-separation parenting program (paragraph (a)); to
attend an appointment (or a series of appointments) with a family consultant (paragraph (b));
to attend family counselling (paragraph (c)); to attend family dispute resolution (paragraph
(d)); or to be of good behaviour (paragraph (e)).
200. New paragraphs 70NCA(4)(b), 70NCA(4)(c), 70NCA(4)(d) and 70NCA(4)(e)
replicate the conditions in previous subsections 70NEC(4) and 70NFE(4), with attendance at
a post-separation parenting program added as a new condition at new paragraph
70NCA(4)(a). This minor inclusion ensures consistency with the court's power to order
attendance at such programs under new section 70NBD. The effect of this section is to assist
the contravening party to address issues that affect the carrying out of their parenting
responsibilities that may have contributed to the contravention of the child-related order.
201. New subsection 70NCA(5) provides that before requiring the respondent to enter into
a bond, the court has a duty to explain the bond to them in language that is easily understood
by the respondent. This replaces previous subsections 70NEC(5) and 70NFE(5). The duty
contained in new subsection 70NCA(5) is consistent with other provisions that oblige the
court, legal professionals and others, to provide clear information about the nature and effect
of any orders made in family law proceedings in order to reduce the potential for any
misunderstandings about what is intended.
New section 70NCB - Procedure for enforcing bonds
202. New section 70NCB outlines the procedure for enforcing bonds. This replaces
previous sections 70NECA and 70NFF. The effect of new section 70NCB is to provide
clarity for the court as to when and how to enforce the respondent's compliance with a bond
they have entered into through an order made under new paragraph 70NBF(1)(a). The
broader effect of this section is to uphold the authority of the court and deter non-compliance
with bonds entered into as a result of contravening a child-related order.
203. In new section 70NCB, the word 'person' (found in previous sections 70NECA and
70NFF) is substituted with 'respondent'. The effect of this terminology change is to clarify
that only the respondent in contravention proceedings can be subject to further powers by the
family law courts to enforce compliance with a bond.
204. New subsection 70NCB(1) outlines the circumstances in which new section 70NCB
applies. This replaces existing subsections 70NECA(1), 70NECA(2), 70NFF(1) and
70NFF(2) of the Family Law Act. New subsection 70NCB(1) provides that section 70NCB
applies if the family law courts find that the respondent has contravened a child-related order
without having a reasonable excuse (paragraph (a)); and the respondent has entered into a
bond in accordance with an order made under new paragraph 70NBF(1)(a) (paragraph (b));
and the respondent fails, without having reasonable excuse, to comply with the bond
(paragraph (c)).
205. New subsection 70NCB(2) clarifies the options available to the court in order to
enforce the respondent's compliance with the bond they entered into. This new subsection
replaces existing subsections 70NECA(3) and 70NFF(3) of the Family Law Act. This new
subsection provides that the court may: impose a fine not exceeding 10 penalty units, without
prejudice to the continuance of the bond (paragraph (a)); or revoke the bond and deal with the
45
respondent in any manner in which they could have been dealt with for the contravention of
the child-related order, if the bond had not been entered into, and the respondent was before
the court under Division 13A in respect of that contravention (paragraph (b)). The wording of
new subsection 70NCB(2) is almost identical to previous subsection 70NECA(3), with minor
consequential changes and edits made for clarity and readability.
206. New subsection 70NCB(3) outlines the matters which the court must take into
account when acting under new subsection 70NCB(2). This replaces previous
subsections 70NECA(4) and 70NFF(4). New subsection 70NCB(3) provides that the matters
the court must take into account (without limiting the matters the court may take into
account) are: the fact that the bond was entered into (paragraph (a)); anything done in
accordance with the bond (paragraph (b)); and any fine imposed, and any other order made,
for or in respect of the contravention of the child-related order (paragraph (c)). The wording
of new subsection 70NCB(3) is almost identical to previous subsection 70NECA(4), with
minor consequential changes and edits made for clarity and readability.
New section 70NCC - Matters relating to imprisonment
207. New section 70NCC provides guidance to the court when sentencing a respondent to
imprisonment under new subparagraph 70NBF(1)(d)(ii) in response to the contravention of a
child-related order without having a reasonable excuse, established beyond reasonable doubt.
It replaces previous section 70NFG. In new section 70NCC, the word 'person' (found in
existing section 70NFG) is substituted with 'respondent'. The purpose of this change is to
clarify that this section only applies to respondents in contravention proceedings, as only
respondents can be subject to a sentence of imprisonment under new
subparagraph 70NBF(1)(d)(ii).
208. New subsection 70NCC(1) clarifies the circumstances in which new section 70NCC
applies, which is when a sentence of imprisonment is imposed on the respondent under new
subparagraph 70NBF(1)(d)(ii).
209. New subsection 70NCC(2) outlines the limits on sentences of imprisonment imposed
by the court. This replaces previous subsection 70NFG(1). This subsection provides that the
sentence of imprisonment must be expressed to be for a specified period of no more than 12
months (paragraph (a); or for a period ending at the earlier of the time when the respondent
complies with the child-related order concerned, or 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 (paragraph (b)).
210. New subsection 70NCC(3) outlines arrangements relating to good behaviour bonds.
This replaces previous subsections 70NFG(6) and 70NFG(7). New subsection 70NCC(3)
provides that when sentencing the respondent to imprisonment, the family law courts may
direct that, after serving a specified part of the term of imprisonment, the respondent be
released upon them entering into a bond (with or without surety or security) that they will be
of good behaviour for a specified period of up to two years.
211. New subsection 70NCC(4) provides that the court must give reasons as to why it is
satisfied that in all the circumstances of the case, it would not be appropriate to deal with the
contravention in any way other than imprisonment (paragraph (a)); and cause those reasons to
be entered in the records of the court (paragraph (b)). This replaces previous
46
subsection 70NFG(3). The Note to this new subsection refers to new subsection 70NBF(4)
which requires the court to take into account all the circumstances of the matter and satisfy
itself that imprisonment is the only appropriate way to deal with the contravention.
212. New subsection 70NCC(5) provides that the failure of the court to provide a statement
of reasons in accordance with new subsection 70NCC(4) would not invalidate a sentence of
imprisonment. This replaces previous subsection 70NFG(4).
New section 70NCD - Powers of court in relation to imprisoned person
213. New section 70NCD clarifies the powers of the court in relation to a person who is
sentenced to imprisonment under new subparagraph 70NBF(1)(d)(ii) in response to the
contravention of a child-related order without having a reasonable excuse, established beyond
reasonable doubt. This replaces previous section 70NFG. In new section 70NCD, the word
'person' (found in existing section 70NFG) is substituted with 'respondent'. The purpose of
this terminology change is to clarify that this section only applies to respondents in
contravention proceedings, as only respondents can be subject to a sentence of imprisonment
under new subparagraph 70NBF(1)(d)(ii).
214. New subsection 70NCD(1) provides that the court that has sentenced the respondent
to imprisonment may order their release if it is satisfied that the respondent will, if released,
comply with the court's orders. This replaces previous subsection 70NFG(8).
215. New subsection 70NCD(2) provides that the court which sentences the respondent to
imprisonment may suspend the sentence upon the terms and conditions determined by the
court (paragraph (a)); and terminate such suspension (paragraph (b)). This replaces existing
subsection 70NFG(5).
New section 70NCE - Rules relating to child maintenance orders and child support
216. New subsection 70NCE(1) replaces previous subsection 70NFB(4) and provides that
a sanction of imprisonment under new subparagraph 70NBF(1)(d)(ii) may be imposed only if
the court is satisfied that the respondent has intentionally or fraudulently breached a child
maintenance order.
217. New subsection 70NCE(2) relocates and replaces previous subsection 70NFG(9). It
specifies that the serving by the respondent of a period of imprisonment imposed under new
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.
218. New subsection 70NCE(3) replaces previous subsection 70NFB(5). It provides that
the court must not impose a sanction of imprisonment in respect of a breach of certain
provisions of the Child Support (Assessment) Act 1989 - in particular, a contravention of a
child support assessment or a breach of a child support agreement made under that Act, or a
contravention of a departure order made under Division 4 of Part 7 of that Act (including
such an order that contained matters mentioned in section 141 of that Act).
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Subdivision D--Miscellaneous
New section 70NDA - Court may issue warrant for arrest of alleged offender
219. New section 70NDA relocates and replaces previous section 65Q of the Family Law
Act, which outlines the circumstances where the court may issue a warrant for the arrest of an
alleged offender (the respondent).
220. New subsection 70NDA(1) provides that a court may issue a warrant to arrest the
respondent where: a parenting order which provides for a child to live with, spend time with
or communicate with the complainant (paragraph (a)) and the court is satisfied that there are
reasonable grounds for believing that the respondent has breached the orders in respect of the
grounds covered in items 1-3 of the table in new subsection 70NAC(2) (paragraph (b)); and
the issue of the warrant is required to ensure that the respondent will attend court for the
purposes of the alleged contravention (paragraph (c)).
221. New subsection 70NDA(2) clarifies that a warrant ceases to be in force on the date
mentioned in the warrant, which must be not more than 6 months after the issuing of the
warrant.
New section 70NDB - Relationship between Division and prosecutions for offences
under other laws
222. New section 70NDB replaces previous section 70NFH of the Family Law Act,
outlining the relationship between Division 13A and other laws. This new section creates a
broader requirement to dismiss or adjourn proceedings, as compared with existing
section 70NFH which only requires a dismissal or adjournment for serious contraventions.
This change reflects the fact that the restructured Division 13A no longer separately provides
for circumstances where the court considers the contravention to be 'less serious' or 'more
serious'. It also adds the word 'alleged' before 'contravention' and 'offence' into new
subsections 70NDB(1) and 70NDB(2). This ensures that a contravention or an offence does
not need to be proven before this section would apply.
223. New subsection 70NDB(1) provides that this section applies if an act or omission by
the respondent not only constitutes an alleged contravention of a child-related order but also
constitutes an alleged offence under any law and the respondent is prosecuted for that
particular offence.
224. New subsection 70NDB(2) provides that the court must dismiss proceedings relating
to the alleged contravention of the child-related order; or adjourn those court proceedings
until the prosecution is completed.
225. New subsection 70NDB(3) clarifies that nothing in Division 13A renders a person
liable to be punished twice in relation to the same act or omission.
New section 70NDC - Division does not limit operation of section 105
226. New section 70NDC replaces previous section 70NFJ and confirms that nothing in
Division 13A limits the operation of section 105 which deals with enforcement generally.
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Item 22 - Division 14 of Part VII (after the heading)
Subdivision A--What this Division does
227. This item inserts new a Subdivision A - What the Subdivision does after the heading
in Division 14 of Part VII. These changes, and the related changes below, concern the repeal
and relocation of Subdivision D - 'Dealing with people who have been arrested' from
Division 6 to Subdivision B of Division 14 of Part VII (see item 18). This change, along with
the consolidation of previous Subdivision C of Division 6 into various sections of new
Division 13A (see item 18) streamline Division 6 and place the provisions nearer the
operative provisions in Division 13A.
Item 23 - Section 70P
228. This item amends section 70P of the Family Law Act by removing the reference to
'deals with' and substitutes 'is about dealing with people who have been arrested and'.
Item 24 - After section 70P
Subdivision B--Dealing with people who have been arrested
229. This item inserts, after section 70P, new Subdivision B--Dealing with people who
have been arrested, which is outlined as follows.
New section 70PA Situation to which Subdivision applies
230. New section 70PA replaces previous subsection 65R(1) and clarifies that
Subdivision B only applies if a person is arrested under a warrant issued under new
subsection 70NDA(1)(warrants for the arrest of persons alleged to have breached a
child-related order)(paragraph (a)); or the person is arrested without a warrant under a
recovery order (paragraph (b)).
New section 70PB Arrested person to be brought before a court
231. New subsection 70PB(1) replaces previous subsection 65S(1) and confirms that the
person who arrested the alleged offender must ensure that they are brought before a court
having jurisdiction under this Part before the end of the holding period application under new
subsection 70PB(4) (paragraph (a)); and 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 of two circumstances. These are that the alleged offender has been arrested and
of the court before which the alleged offender is to be brought (paragraph (b)).
232. New subsection 70PB(2) replaces previous subsection 65S(2) and provides that 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.
233. New subsection 70PB(3) replaces previous subsection 65S(3) and confirms that new
section 70PB does not authorise the holding in custody of an alleged offender after the end of
the holding period.
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234. New subsection 70PB(4) replaces previous subsection 65S(4) and defines 'holding
period' to mean if a Saturday, Sunday or public holiday commences within 24 hours after the
arrest of the alleged offender - the longer of the following periods - the period commencing
with the arrest and ceasing 48 hours later; or the period commencing with the arrest and
ending at the end of the next day after the day of the arrest which does not fall on a Saturday,
Sunday or public holiday (paragraph (a)); or in any other case, the period commencing with
the arrest and ceasing 24 hours later (paragraph (b)).
New section 70PC Obligation of court - where application before it to deal with
contravention
235. New subsection 70PC(1) replaces previous subsection 65T(1) and clarifies that this
section only applies where the alleged offender is brought before a court under new
section 70PB (paragraph (a)); and there is an application before the court for the alleged
offender to be dealt with under Division 13A for the alleged breach (paragraph (b)).
236. New subsection 70PC(2) replaces previous subsection 65T(2) and confirms that a
court, without delay, must proceed to hear and determine the application before it to deal with
the breach of order.
New section 70PD Obligation of court - where no application before it, but application
before another court, to deal with contravention
237. New subsection 70PD(1) replaces previous subsection 65U(1) confirms that this
section only applies where the alleged offender is brought before a court under section 70PB
(paragraph (a)); and there is either no application or no longer any application, before the
court for the alleged offender to be dealt with under Division 13A for the alleged breach
(paragraph (b)); and so far as the court is aware, there is either no application, or no longer
any application, before any other law court for the alleged offender to be dealt with under
Division 13A for the alleged breach (paragraph (c)).
238. New subsection 70PD(2) replaces previous subsection 65U(2) and confirms that the
court must, without delay make an order that the alleged offender is to be released from
custody on their entering into a recognisance (with or without surety or security) that they
will attend court on a date, time and place specified by the court (paragraph (2)); or order the
arresting person to arrange for the alleged offender to be brought to court on a date and time
as specified by the court, being a date and time not being more than 72 hours, after the order
is made.
239. New subsection 70PD(3) replaces previous subsection 65U(3) and confirms that if a
court makes an order under new paragraph 70PD(2)(b) for the alleged offender to be brought
before another court, subject to paragraph 70PD(3)(c), the alleged offender may be kept in
custody until they are brought before the other court (paragraph (a)); and if the alleged
offender is brought before the other court, that court must, without delay proceed to hear and
determine the application mentioned in paragraph 70PD(1)(c) (paragraph (b)); and the
alleged offender must be released without delay if they are not brought before the other court
as required by the order (paragraph (c)).
50
New section 70PE Obligation of court - where no application before any court to deal
with contravention
240. New subsection 70PE(1) replaces previous subsection 65V(1) and clarifies that this
section applies in the following three circumstances: the alleged offender is brought before a
court under new section 70PB (paragraph (a)) and there is either no application or no longer
any application, before the court for the alleged offender to be dealt with under Division 13A
for the alleged breach (paragraph (b)); and so far as the court is aware, there is either no
application, or no longer any application, before any other law court for the alleged offender
to be dealt with under Division 13A for the alleged breach (paragraph (c)).
241. New subsection 70PE(2) replaces previous subsection 65V(2) and confirms that the
court must, without delay, order the release of the alleged offender if the three circumstances
as described in subsection 70PE(1) are met.
New section 70PF Applications heard as required by subsection 70PC(2) or
paragraph 70PD(3)(b)
242. New subsection 70PF(1) replaces previous subsection 65W(1) and provides that if a
court hearing an application as required by new subsection 70PC(2) or paragraph 70PD(3)(b)
adjourns the hearing, the court must order the alleged offender to be kept in custody as it
considers appropriate during the adjournment period (paragraph (a)); or order that the alleged
offender is to be released from custody either on them entering into a recognisance (with or
without surety or security) that they will attend the court upon resumption of the hearing or
otherwise (paragraph (b)).
243. New subsection 70PF(2) replaces previous subsection 65W(2) and clarifies that new
section 70PF does not authorise the holding in custody of the alleged offender during the
adjournment of court proceedings that is either for a period of more than 24 hours
(paragraph (a)); or continues for more than 24 hours (paragraph (b)).
Item 25 - Paragraph 109A(1)(a)
244. This item repeals existing 109A(1)(a) which provides for 'an order under this Act
affecting children' and replaces it with the new definition of 'a child-related order' (see new
subsection 70NBA(2) above).
Item 26 - Subsection 112AP(9) (definition of order under this Act)
245. This item amends subsection 112AP(9) (definition of 'order under this Act') by
omitting the reference to 'an order under this Act affecting children' and substituting with a
reference to the new definition of 'a child-related order' (see new subsection 70NBA(2)
above).
Item 27 - Subsection 117(1)
246. This item amends subsection 117(1) to reflect the repeal of subsection 70FNB(1), by
removing reference to two 'subsections' as relevant to subsection 117(1) and retaining
reference only to a singular 'subsection'. Subsection 45A(6) remains relevant, and reference
to this subsection is retained.
51
Item 28 - Subsection 117(1)
247. This item amends subsection 117(1) to remove reference to subsection 70NFB(1) and
substitutes it with reference to new section 70NBE, to reflect the new costs provisions in
Division 13A.
Item 29 - Subsection 117(1)
248. This item updates the language in subsection 117(1) to omit reference to 'his or her'
costs and refer to 'the party's' costs.
Item 30 - Subparagraph 123(1)(j)(iii)
249. This item amends subparagraph 123(1)(j)(iii), by omitting sections '70NEB or
70NEG' and replacing them with references to the new sections '70NBB, 70NBD, 70NBE or
70NBF' of Division 13A.
Federal Circuit and Family Court of Australia Act 2021
Item 31 - Subparagraph 98(2)(n)(iv)
250. This item repeals existing subparagraph 98(2)(n)(iv) which refers to
'paragraph 70NEB(1)(a)' and substitutes new subsection '(iv) subsection 70NBD(1)' to
reflect the renumbering and simplification changes made to Division 13A.
Item 32 - Subparagraph 224(1)(i)(iii)
251. This item amends existing subparagraph 224(1)(i)(iii) by omitting references to
existing sections 70NEB or 70NEG' and substituting with references to new sections 70NBB,
70NBD, 70NBE or 70NBF to reflect the renumbering and simplification changes made to
Division 13A.
Item 33 - Subparagraph 254(2)(n)(iv)
252. This item repeals existing subparagraph 254(2)(n)(iv) and substitutes new
paragraph (iv) subsection 70NBD(1) to reflect the renumbering and simplification changes
made to Division 13A.
Division 2--Amendments contingent on the commencement of provisions of Part 3 of
Schedule 1
Family Law Act 1975
Item 34 - At the end of subsection 70NBC(1)
253. This item inserts a note at the end of subsection 70NBC(1) which cross-references
new section 65DAAA, to clarify that a court must not reconsider a final parenting order
(other than a child maintenance order) unless the court has considered and is satisfied with
the matters contained in that section.
52
Item 35 - At the end of subsection 70NBC(3)
254. This item inserts a note at the end of subsection 70NBC(3) which cross-references
new section 65DAAA, to clarify that a court must not reconsider a final parenting order
(other than a child maintenance order) unless the court has considered and is satisfied with
the matters contained in that section.
Division 3 - Application and transitional rules
Family Law Act 1975
Item 36 - Application and transitional rules
255. This item creates a rule-making power which would permit the Minister to make
application and transitional rules via legislative instrument, relating to the amendments or
repeals made by this Part.
256. While every effort has been taken to ensure the comprehensiveness of this Bill, it is
prudent to provide a means for a rule to be issued quickly should relevant circumstances
emerge.
257. The power is limited to making rules for matters of a transitional nature that relate to
commencement of these provisions and would not be used to make longer term or more
substantial rules. Subitem 36(2) prescribes what the rules may not do.
258. This new rule-making power is not designed to undermine Parliament's legislative
responsibility. Any such rules would be made in the form of legislative instruments, and
subject to the scrutiny of Parliament and motions of disallowance.
Part 2 - Delegations
Division 1 - Main amendment
Federal Circuit and Family Court of Australia Act 2021
Item 37 - Subsection 7(1) (before paragraph (c) of the definition of excluded child order)
259. This item inserts paragraph (ba) to the definition of 'excluded child order' contained
in existing subsection 7(1) of the FCFCOA Act. This amendment allows registrars of the
FCFCOA to be delegated the power to impose a make-up time parenting order, under
existing paragraphs 70NDB(1)(c), 70NEB(1)(b) and 70NFB(2)(c) contained in Division 13A
of the Family Law Act which refer to the court's power to order make-up time parenting
orders in contravention proceedings.
260. This item commences immediately on Royal Assent (see item 5 of the
commencement table) and therefore allow registrars to make these delegations in the interim
period between Royal Assent and commencement of the redrafted Division 13A provisions
(which commence 6 months after Royal Assent - see item 6 of the commencement table).
261. Following commencement of the redrafted Division 13A provisions, the
FCFCOA Act is amended in accordance with item 38 below.
53
Division 2 - Amendment relating to amendments made by Part 1 of this Schedule
Federal Circuit and Family Court of Australia Act 2021
Item 38 - Amendment relating to amendments made by Part 1 of this Schedule
262. This item repeals paragraph 7(1)(ba), inserted in the definition of 'excluded child
order' by item 37, and substitutes it with a new paragraph (ba).
263. New paragraph (ba) is inserted to reflect commencement of the redraft of
Division 13A (see item 21) and the insertion of new section 70NBB which refers to the
court's power to order make-up time parenting orders in contravention proceedings.
264. This amendment allows registrars of the FCFCOA to be delegated the power to
impose a make-up time parenting order under new section 70NBB.
54
Schedule 3--Definition of member of the family
Family Law Act 1975
Item 1 - Subsection 4(1) (subparagraph (a)(vi) of the definition of relative)
265. Subsection 4(1) includes a definition of 'relative of a child'. Item 1 amends the
definition to enable the definition to be expanded in item 2.
Item 2 - Subsection 4(1) (at the end of paragraph (a) of the definition of relative)
266. Subsection 4(1) includes a definition of 'relative of a child'. Item 2 expands the
definition to include 'for an Aboriginal child or a Torres Strait Islander child - a person who,
in accordance with the child's Aboriginal or Torres Strait Islander culture, is related to the
child'. This amendment is intended to reflect that Aboriginal or Torres Strait Islander peoples
may have extended family structures or kinship systems and that child-rearing responsibilities
may extend beyond the immediate family group or what is reflected in the current definition
of relative.
Item 3 - Paragraph 4(1AC)(a)
267. Subsection 4(1AC) includes a definition of 'relative of a person' that applies
specifically to the definition of 'member of the family' in subsection 4(1AB). Item 4 amends
this definition to include 'any other ancestor'. This expands the definition of relative to
familial relationships based on ancestry that are not otherwise included in subsection 4(1AC).
Item 4 - At the end of subsection 4(1AC)
268. Subsection 4(1AC) includes a definition of 'relative of a person' that applies
specifically to the definition of 'member of the family' in subsection 4(1AB). Item 4 expands
this definition to include, for an Aboriginal child or a Torres Strait Islander child - a person
who, in accordance with the child's Aboriginal or Torres Strait Islander culture, is related to
the child. This amendment has the effect of broadening the application of the definition of
'member of the family' in the Act to include Aboriginal and Torres Strait Islander concepts
of family. This amendment is intended to reflect that Aboriginal and Torres Strait Islander
peoples may have extended family structures or kinship systems and that child-rearing
responsibilities may extend beyond the immediate family group or what is reflected in the
current definition of relative or 'member of the family'.
Item 5 - Application provision
269. This item provides that so far as the definition of relative in subsections 4(1) and
4(1AC) apply in relation to proceedings, the amendments of those provisions apply in
relation to proceedings that commence on or after the day this item commences.
55
Schedule 4--Independent Children's Lawyers
Part 1 - Requirement to meet with the child
Family Law Act 1975
Item 1 - Subsections 68L(5) and (6)
270. This item repeals subsections 68L(5) and 68L(6) because these subsections are
duplicative of actions that are required under the provisions inserted by Schedule 4 Part 1 to
require an ICL to meet with the child and to provide the child with an opportunity to express
any views in relation to the matters to which proceedings relate.
271. Subsection 68L(5) provides that the court may make an order under paragraph
68L(2)(b) for the purpose of allowing the lawyer who is to represent the child's interests to
find out what the child's views are on the matters to which the proceedings relate. Subsection
68L(5) does not itself impose duties on the ICL, and only specifies one of the orders available
to the court under paragraph 68L(2)(b).
272. Subsection 68L(6) provides that subsection 68L(5) does not apply if complying with
that subsection would be inappropriate because of the child's age or maturity or some other
special circumstance. The current formulation implies that in the circumstances envisioned
under subsection 68L(6), the court does not have the power to make an order under
subsection 68L(5).
273. Item 2 inserts new subsections that establish duties of ICLs to meet with and seek the
views of children, and the role of the courts in overseeing this process. New subsection
68LA(5A) introduces a requirement for the ICL to meet with the child and give the child the
opportunity to express their views. New subsections 68LA(5B) and 68LA(5C) identifies
when the ICL is not required to perform these duties because of certain circumstances or the
impact on the child. New subsection 68LA(5D) provides that the court may make an order
that the ICL perform these duties.
Item 2 - After subsection 68LA(5)
274. Item 2 inserts four new subsections after subsection 68LA(5) to require an ICL to
undertake certain duties that facilitate in a safe and appropriate manner the participation of
the child in matters that affect them. These new duties complement the existing duties in
subsection 68LA(5) which require the ICL to act in a certain way and undertake specific
actions in order to promote the best interests of the child. This item will ensure that the child
is provided an opportunity to express views and to be heard, consistent with Article 12 of the
CRC.
275. New subsection 68LA(5A) provides that the ICL must meet with the child and give
the child the opportunity to express any views in relation to the matters to which the
proceedings relate. The requirement to perform these duties applies in all cases where an ICL
is appointed, including parenting matters under Part VII, welfare matters under section 67ZC,
and where ICLs are appointed for children in proceedings relating to the Hague Convention
under regulations made for the purposes of section 111B. The performance of these duties is
subject to new subsection 68LA(5B). The note to subsection 68LA(5A) states that a person
56
cannot require a child to express the child's views in relation to any matter in accordance
with section 60CE.
276. The performance of the two duties in subsection 68LA(5A) do not necessarily need to
occur at the same time. The ICL retains the discretion to determine the timing, frequency and
method of engagement with the child based on professional judgement and subject to any
directions or orders of the court. A meeting with the child may occur for various purposes,
including but not limited to giving the child an opportunity to express a view. For example,
an ICL may choose to meet with the child upon appointment to explain to the child the ICL's
role, the nature of the relationship between the child and the ICL and to determine the extent
to which the child wishes to be involved. The ICL may seek a subsequent meeting to discuss
with the child their views on the matters of the proceedings.
277. The method by which an ICL may meet with a child under subsection 68LA(5A) is
not limited, nor is the method by which a child's views may be obtained under subsection
68LA(5A), which may include a letter or electronic communication, provided the method
facilitates the child's views. Guidelines for Independent Children's Lawyers, as updated from
time to time, provides guidance on methods for meeting with and obtaining the view of the
child. Legal Aid Commissions may provide other guidance materials on the methods and
expectations of ICLs when engaging with children.
278. The requirement to meet with a child and to provide the child with an opportunity to
express a view is not specified to occur at a specific point in proceedings, but must occur
prior to final orders being made. The ICL must perform the duties at some stage in
proceedings, subject to subsection 68L(5B). It is not intended that the ICL must perform the
duties before each court appearance, unless the ICL considers this to be appropriate in the
circumstances. It remains the discretion of the ICL to determine the timing and frequency of
performing the duties.
279. The ICL under subsection 68LA(5A) must provide the child with the opportunity to
express any views in relation to the matters to which the proceedings relate. For example, in
proceedings under Part VII, the child may wish to express general views about their home
situation or relationship with parents and siblings, or express more specific views about time
proposed to be spent with parents. If the child does choose to express any views about
matters to which the proceedings relate, the ICL must ensure that these views are put fully
before the court under paragraph 68LA(5)(b).
280. It is important that children have the opportunity to express a view and to be heard in
relation to matters that affect them. The ICL may determine the weight to be given to a
child's views when making a submission to the court about a particular course of action
under subsection 68LA(3). The court must also consider any views expressed by the child
when determining what is in a child's best interests when making orders under Part VII .
281. The child may also communicate other information to the ICL. Under subsections
68LA(6) to (8), the ICL is not under an obligation to disclose to the court any information
communicated by the child, however may do so if the ICL considers disclosure to be in the
best interests of the child. This applies to disclosures that are made against the wishes of the
child. Subsections (6) to (8) continue to apply in conjunction with the new provisions inserted
by Schedule 4 Part 1.
57
282. New subsection 68LA(5B) provides that an ICL is not required to perform one or both
of the duties in subsection 68LA(5A) if certain circumstances exist. These include if the child
is under 5 years of age, or if the child does not wish to meet with the ICL or express their
views (as the case requires), or if these are exceptional circumstances that justify not
performing the duty.
283. Paragraph 68LA(5B)(a) provides that an ICL is not required to perform a duty if the
child is under 5 years of age. This reflects that as a general position it is not appropriate for
the ICL to be required to perform the duties in subsection 68LA(5A) in relation to children
below school age. However, the ICL retains the discretion to meet with a child under 5 years
of age if this is considered appropriate. For example, if an ICL is appointed to represent the
best interests of multiple siblings where one child is under 5 years of age, the ICL may
choose to meet with the sibling group together and seek individual meetings with the older
children.
284. Paragraph (5B)(b) provides that an ICL is not required to perform a duty if the child
does not wish to do so. This is consistent with section 60CE which provides that nothing in
Part VII permits the court or any person to require the child to express views in relation to
any matter. This paragraph makes clear that a child has choices about the way they want to
engage with the ICL. These must be the child's wishes, and not those of others. The child
may choose not to meet with the ICL and not to express any views. The child may choose to
meet with the ICL, but may not wish to express a view. Alternatively, the child may wish to
express a view but may not wish to meet with the ICL. In these circumstances, the ICL
should organise for an alternative method for the child to communicate their views, for
example, a letter or electronic communication.
285. Paragraph (5B)(c) provides that an ICL is not required to perform a duty if there are
exceptional circumstances that justify not performing the duty. This subsection acknowledges
that there may be circumstances where it is not in the best interests of the child for the ICL to
perform one or both of the duties in subsection 68LA(5A) to meet with the child and to
provide an opportunity to express a view.
286. New subsection (5C) identifies exceptional circumstances for the purposes of
paragraph (5B)(c). Paragraph (5C)(a) provides that where performing a duty would expose
the child to a risk of physical or psychological harm, and this risk cannot be safely managed,
the ICL is not required to perform the duty. Paragraph (5C)(b) provides that where
performing a duty would have a significant adverse effect on the wellbeing of the child, the
ICL is not required to perform the duty.
287. The risk of physical or psychological harm, or significant adverse effect on the
wellbeing of the child, must result from the ICL's performance of the duty. The risk of
physical or psychological harm or significant adverse effect on the wellbeing of the child
must be considered in relation to the specific child. ICLs are frequently appointed in cases
where family violence or child abuse risks are present, but this should not preclude a child
from meeting with the ICL and, if they wish to, from being given an opportunity to express a
view. In these circumstances, additional support and safeguards may be put in place to
minimise any trauma to the child to ensure that they can safely engage in matters that affect
them, rather than a presumption in favour of precluding them from engagement. The wishes
58
and needs of each child, including within a sibling group, may differ and should be
considered on a case-by-case basis.
288. Subsection (5C) does not limit the circumstances that could be considered exceptional
for the purposes of paragraph (5B)(c). The examples of circumstances that are considered
exceptional outlined in (5C)(a) and (5C)(b) are focused on the impact on the child of the ICL
performing the duties. This is intended to balance risks to the safety of the child and their
rights to participate. There may be other circumstances that impact an ICL's decision to
perform a duty that do not necessarily relate to the impact on the child. Determining whether
these circumstances are exceptional and justify not performing the duty must be carefully
considered, particularly in light of the child's right to express their views freely in all matters
affecting them in accordance with Article 12 of the CRC.
289. New subsection (5D) provides that the court must determine whether an ICL should
meet with the child or provide the child with an opportunity to express a view (as the case
requires) if the ICL proposes not to perform a duty because of paragraph (5B)(c). Paragraph
(5D)(a) provides that the court must determine whether it is satisfied that exceptional
circumstances exist that justify not performing the duty. Paragraph (5D)(b) provides that if
the court determines that those circumstances do not exist, it must make an order requiring
the ICL to perform the relevant duty. The court must consider this prior to final orders being
made.
290. Examples have been provided to assist in determining the matters that could be
considered 'exceptional' to justify not performing one or both duties.
291. Example 1: Nicola is an ICL who was recently appointed for 10-year-old Adam due
to allegations that Adam's father has demonstrated violent and controlling behaviour towards
Adam's mother that has escalated since the breakdown of their relationship. Adam currently
spends time with both his father and mother. Adam's father disputes the allegations of violent
and controlling behaviour and each parent wants Adam to live with them. Adam has
disclosed to a family consultant that he does not feel safe talking about the family law
proceedings at home because he is scared that his father will overhear and get angry. The
family consultant has written a report that identifies the relevant risk issues, provides
information about Adam's experiences and needs, including Adam's views about where he
wants to live right now. Nicola is expected to appear before the court and make a submission
on interim parenting arrangements for Adam in two days' time. Adam and his parents live in
a rural area and Nicola cannot travel there or organise Adam and one of his parents to travel
in the time before the hearing. Nicola considers that she cannot guarantee Adam's safety if a
meeting is conducted via electronic means and explains this to the presiding judge at the
hearing. The judge agrees that this would expose Adam to the risk of physical or
psychological harm but asks that Nicola organise an alternative form of meeting with Adam,
such as with a safe supervisor, and seek his views prior to the final hearing. If this does not
occur, the judge will make an order for Nicola to perform the duties under paragraph
68LA(5D)(b) unless she can demonstrate that there are exceptional circumstances that justify
not performing the duty.
292. Example 2: Marc is an ICL who was appointed for 8-year-old Sasha six months ago.
Sasha's mother and father have been separated for three years and are involved in court
proceedings to determine whether Sasha should have contact with her mother. Sasha's
59
mother struggles with substance abuse and Sasha has been subjected to child sexual abuse by
her mother's partner. Sasha has had engagement with child protection services and is seeing a
child psychologist. A family consultant has also prepared a family report that provides
information about Sasha's relationship to her parents, views that Sasha has previously
expressed about her relationship with her mother, a risk assessment and a recommendation
about appropriate parenting arrangements for Sasha. Both the child psychologist and the
family consultant who has completed a family report state that Sasha's mental state is very
fragile and when she is asked about her mother and her new partner she begins to cry for her
father and paternal grandmother. Marc considers that a meeting with an additional
professional to discuss her experiences and the court proceedings would have a significant
adverse effect on Sasha's wellbeing. At a hearing, the judge asks Marc if he has met with
Sasha. The judge agrees that the evidence provided indicates that meeting with Sasha and
seeking her views would have a significant adverse effect on her wellbeing, satisfying the test
in paragraph 68LA(5C)(b). Marc makes a submission to the court about appropriate parenting
arrangements for Sasha on the basis of the other evidence available.
293. Example 3: Rashna is an ICL who has been appointed for 12-year old Annie. Annie
has significant developmental disabilities and is non-verbal. Annie's mother is her full-time
carer and wants to relocate to a different state and has commenced court proceedings to
reconsider the final parenting orders made two years ago which allow Annie's father to spend
time with her every other weekend. Rashna considers the evidence provided to her and
explains to the judge that these are exceptional circumstances that would justify not
performing the duty to meet with the child and give the child an opportunity to express a
view. The judge agrees that these circumstances are exceptional, but notes that although
Annie cannot express her wishes or views verbally, it is still important for an ICL to
understand the individual child and suggested that Rashna could organise to meet with Annie
in a format that is adjusted for her needs with the assistance of a specialised professional
instead of a formal meeting.
294. The note to subsection 68LA(5D) states that the court may also make such other
orders as it considers necessary to secure the independent representation of the child's
interests, in accordance with paragraph 68L(2)(a).
Item 3 - Application provision
295. Item 3 provides that the amendments will apply in relation to proceedings that
commence on or after the day this item commences.
Part 2 - Convention on the Civil Aspects of International Child Abduction
Family Law Act 1975
Item 4 - Subsection 68L(1)
296. This item repeals subsection 68L(1) and replaces it with a provision that adds an
express statement that Hague Convention matters are to be treated as matters involving a
child's welfare as the paramount or a relevant consideration for the purposes of section 68L.
297. The purpose of this item is to clarify that Hague Convention proceedings fall within
the scope of matters that fall within section 68L.
60
Item 5 - Subsection 68L(3)
298. This item repeals the existing subsection 68L(3), to remove the requirement that the
court considers there to be 'exceptional circumstances' that justify the appointment of an ICL
for proceedings under the Hague Convention.
299. The inclusion of subsection 68L(3) to restrict ICL appointments in Hague Convention
matters was intended to ensure the primacy of speed and efficiency in Hague Convention
proceedings and reflect the intention of Convention proceedings to return children back to the
country of habitual residence without the need to inquire into the best interests of the child.
300. However, in practice, Convention matters are often complex and do not always
proceed in the summary nature originally contemplated. Rather than slow down proceedings,
ICLs can often facilitate more efficient resolution in complex matters including pre-trial
resolution or compensation for deficiencies in parties' cases.
301. Removing the exceptional circumstances restriction will bring judicial discretion to
appoint ICLs in Hague Convention matters in line with other family law matters, contributing
to safer implementation of the Hague Convention.
Item 6 - Application provision
302. Item 6 provides that the amendments apply in relation to proceedings that commence
on or after the day this item commences.
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Schedule 5--Case management and procedure
Part 1 - Harmful proceedings orders and co-location of sections 45A and 102Q
Family Law Act 1975
Item 1 - Section 45A
303. This item repeals section 45A. Section 45A empowers the court to summarily dismiss
proceedings where the applicant or respondent has no reasonable prospects of success or
where the proceedings are frivolous, vexatious or an abuse of process. Item 6 replicates
section 45A in Division 1A - Summary decrees.
Item 2 - Part XIB (heading)
304. This item repeals the Part XIB heading and replaces it with a new heading to reflect
the collocation of existing section 45A to the new Division 1A and the inclusion of harmful
proceedings orders in this Part.
Item 3 - Before section 102Q
102QAA Simplified outline
305. This item inserts a simplified outline of Part XIB in section 102QAA. The outline
provides that Part XIB sets out the court's powers to deal with proceedings that are
unmeritorious, harmful and vexatious.
306. The outline explains the concepts of unmeritorious proceedings, harmful proceedings
and vexatious proceedings in simple terms to assist the user with their understanding of Part
XIB and improve usability of the Family Law Act. An example is provided of the type of
harm and circumstances that could be grounds for a harmful proceedings order.
Item 4 - Subsection 102Q(1)
307. This item inserts a new definition of 'harmful proceedings order' into the list of
definitions for Part XIB in section 102Q. The definition provides that a 'harmful proceedings
order' means an order made under subsection 102QAC(1).
Item 5 - Section 102QA
308. This item repeals section 102QA and replaces it to make clear that Part XIB does not
limit or otherwise affect the powers that a court has in other provisions in this Part or any
other power that a Court has to deal with proceedings.
Item 6 - After section 102QA
Division 1A--Summary decrees
309. This item inserts new Division 1A - Summary decrees and new Division 1B -
Harmful proceedings order into Part XIB of the Family Law Act alongside the court's
existing power to make vexatious proceedings orders. The purpose of this measure is to
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collocate all the court's powers for dealing with applications or proceedings that are
frivolous, vexatious, unmeritorious or an abuse of process to improve useability.
310. Division 1A contains new section 102QAB. This section substantially replicates
previous section 45A, which is repealed by item 1. Section 102QAB brings the text in line
with current drafting practice and clarifies the language to improve usability.
311. New subsection 102QAB(1) allows the court to make a summary decree in favour of
one party, the 'first party', in relation to the whole or part of a proceeding, if the first party is
prosecuting the proceedings or part of the proceedings, and the court is satisfied that the other
party has no reasonable prospect of successfully defending the proceedings or part of the
proceedings.
312. New subsection 102QAB(2) allows the court to make a summary decree in favour of
one party, the 'first party', in relation to the whole or any part of a proceeding, if the first
party is defending the proceedings or part of the proceedings, and the court is satisfied that
the other party has no reasonable prospects of successfully prosecuting the proceedings or
part of the proceedings.
313. New subsection 102QAB(3) provides that, for the purposes of this section, in
determining whether a defence or proceeding has no reasonable prospect of success,
proceedings need not be hopeless or bound to fail.
314. New subsection 102QAB(4) empowers the court to dismiss all or part of proceedings
at any stage if it is frivolous, vexatious or an abuse of process.
315. New subsection 102QAB(5) provides that proceedings or a part of proceedings are
not to be considered frivolous, vexatious or an abuse of process just because a related
application is made and later withdrawn.
316. New subsection 102QAB(5) is intended to operate as a safeguard against the court
misinterpreting the actions of victims of family violence who are litigants in person, who
might make an application and then withdraw it for reasons other than the merits of their
case, for example as a result of the power and control dynamics of family violence.
317. New subsection 102QAB(6) provides that the court may make costs orders as it sees
fit.
318. New subsection 102QAB(7) provides that the court may take action under this section
of its own volition, or on the application of a party to the proceedings.
Division 1B--Harmful proceedings orders
319. Item 6 also inserts a new Division 1B which contains provisions relating to the court's
new power to make harmful proceedings orders. The purpose of this measure is to protect the
respondent and/or children who are the subject of proceedings from the harmful impact of
frequent and unnecessary applications filed by an applicant. This measure aims to limit
systems abuse, which is a form of family violence that is prevalent in the family law system.
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320. This measure addresses a gap in the court's powers to scrutinise the institution of
further proceedings, cited in the case of Marsden & Winch (2013) 50 FamLR 409. The
ALRC Report found that the court's existing vexatious proceedings and summary dismissal
powers do not provide sufficient scope for courts to make appropriate orders in cases where
one party oppresses the other by repetitive filing of applications and the serving of those
applications on the other party.
321. Harmful proceedings orders powers are different from the court's current vexatious
proceedings orders powers (section 102QB). Harmful proceedings orders require the court to
consider the impact that the repetitive and litigious nature of the applicant's filings would
have on the respondent, whereas vexatious proceedings orders powers focus on the
applicant's intent to institute or conduct proceedings in a way so as to harass or annoy, cause
delay or detriment, or achieve another wrongful purpose (see section 102Q). Harmful
proceedings orders powers are not intended to limit the court's other powers, including those
in relation to vexatious proceedings or summary dismissal under section 102QAB.
Subdivision A--Making harmful proceedings orders
322. Subdivision A contains new section 102QAC, which provides the court with power to
make a 'harmful proceedings order'. A harmful proceedings order is defined in new
subsection 102QAC(1) as an order restraining a party to the proceedings from making any
further applications and serving them on the respondent to the proceedings, without first
obtaining leave of the court under new section 102QAG. The person being restrained by the
order is known as the 'first party'. The intention of this power is to allow the courts to
proactively intervene, or intervene upon application by a party to the proceedings, before
further applications are served on the other party, and therefore limit the detrimental effect,
major mental distress or psychological harm that may result from further applications.
323. In considering whether to make a harmful proceedings order under new
subsection 102QAC(1), the court should be satisfied there are reasonable grounds to believe
that:
• the other party would suffer harm of the kind outlined in new subsection 102QAC(2)
if the first party instituted further proceedings against the other party, or
• 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.
324. New subsection 102QAC(2) provides examples of what may constitute 'harm'. Harm
may include psychological harm or oppression, major mental distress or a detrimental effect
on the other party's capacity to care for a child. This list is intended to provide examples of
when repetitive and litigious filing by an applicant has or may result in a significant negative
impact on the respondent's wellbeing to the point where the making of a harmful proceedings
order is appropriate for the protection of the respondent and/or any children involved in the
proceedings.
325. The list of examples under subsection 102QAC(2) is non-exhaustive. A
non-exhaustive list has been adopted as there are various types of harm that a respondent
and/or their children who are the subject of proceedings may experience as a result of a
litigant utilising the family court system as a mechanism to instigate further family violence.
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For this reason, a prescriptive definition of harm has not been included to avoid the risk of
narrowing the scope of what constitutes harm.
326. In effect, what constitutes harm will depend on the individual circumstances of each
case as determined or assessed by the court, having regard to any or all matters including
those in new subsection 102QAC(3).
327. Subsection 102QAC(3) provides that in determining whether to make a harmful
proceedings order, the court may also have regard to:
• the history of the proceedings under the Family Law Act between the two parties
• 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 section would
have commenced), and
• the cumulative effect, or any potential cumulative effect, of any harm resulting from
the proceedings referred to in the two paragraphs above.
328. Subsection 102QAC(3) is not intended to be an exhaustive list of the matters the court
may consider in determining whether to make a harmful proceedings order. The court may
have regard to any other factor relevant to the matter, including where there have been
proceedings in other courts that relate to the matter, interactions with agencies, for example in
relation to child welfare or child support, and any other relevant factor.
329. New subsection 102QAC(4) provides that the power is exercisable by the court on its
own initiative or on application by a party to proceedings.
330. Similar to existing subsection 102QB(4) of the Family Law Act (which relates to
vexatious proceedings orders), new subsection 102QAC(5) provides that the court must not
make a harmful proceedings order in relation to a person without hearing the person, or
giving the person an opportunity to be heard on the merits of their application. This ensures
procedural fairness to the applicant and balances access to justice considerations. This also
ensures any restriction on a party's capacity to institute proceedings is not unfair or
disproportionate, while balancing the need to protect the respondent from harm.
331. New subsection 102QAC(6) provides that a harmful proceedings order made under
subsection 102QAC(1) is final (as opposed to an interlocutory or interim order).
332. New subsection 102QAC(7) provides that, when a court is making a harmful
proceedings order under subsection 102QAC(1), the court must make a determination on
whether the other party should be notified of any applications under section 102QAE for
leave to institute proceedings against the other party. This notification includes, either or
both, that the application was made, and if applicable, that the application has been
dismissed.
333. New subsection 102QAC(8) provides that the court must have regard to the wishes of
the other party when determining whether the respondent should be notified of any
applications for leave made by an applicant, who is subject to a harmful proceedings order,
under subsection 102QAC(7).
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334. Whilst the objective of harmful proceedings orders is to minimise the exposure to
harm of a respondent or child subject to proceedings, a victim-survivor of family violence
who is a respondent may wish to be made aware of applications for leave to file further
proceedings, including dismissed applications, to enable them to make arrangements for their
safety and the safety of their children. If a respondent wishes to not be notified, the court will
not be required to make arrangements to notify the respondent of any future applications
made by an applicant that were dismissed, therefore minimising their exposure to further
harm.
Subdivision B--Consequences of harmful proceedings orders
335. New Subdivision B contains provisions relating to the consequences of harmful
proceedings orders.
336. New subsection 102QAD(1) provides that a person subject to a harmful proceedings
order must not institute proceedings, or act in concert with another person to institute
proceedings, without leave of the court under section 102QAG.
337. New subsection 102QAD(2) provides that if proceedings are instituted by a person
who is the subject of a harmful proceedings order and leave has not been granted, the
proceedings are automatically stayed.
338. New subsection 102QAD(3) provides that if proceedings are stayed, the court may
make any orders relating to the proceedings, including a costs order.
339. New subsection 102QAD(4) provides that the court may make an order under
subsection 102QAD(3) of its own volition, or on the application of a party to the proceedings.
340. New section 102QAE provides the requirements for the party who is subject to a
harmful proceedings order to make an application for leave to institute proceedings. To do so,
the applicant must file an affidavit with the application which lists all occasions on which the
applicant has applied for leave as well as disclosing all relevant facts about the application
known to the applicant (including both supporting and adverse).
341. Applications for leave made under section 102QAE would be made ex parte -
without serving documents on the respondent - unless an order is made under
section 102QAG granting an application for leave.
342. A note is provided at subsection 102QAE(2) that the court may be required to give
notice to the respondent that an application has been made, with reference to subsection
102QAC(7). This is intended to account for circumstances where a respondent expressed a
wish under subsection 102QAC(8) to be notified of applications for leave under section
102QAE, including dismissed applications.
343. Unless the respondent expressed a wish to be notified under subsection 102QAC(8),
and the court has made an order to notify the respondent in accordance with the respondent's
wishes under subsection 102QAC(7), the court will consider the application filed by the
applicant without the respondent being made aware of the application or requiring the
respondent to appear. Subsection 102QAE(4) provides that the applicant must not serve a
copy of their application or affidavit on the respondent until an order is made granting leave
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to institute further proceedings. The rationale for this provision is to minimise further harm to
the respondent resulting from repeated exposure to unnecessary and unmeritorious
applications.
344. New section 102QAF provides that the court may dismiss an application for leave
under section 102QAE if the court considers that the affidavit does not substantially comply
with subsection 102QAE(3) or if it considers the proceedings to be vexatious proceedings. If
an application for leave is dismissed, due to the application being heard on an ex parte basis,
the applicant is not able to serve the application on the respondent and the respondent will not
be made aware of the unsuccessful application. This ensures that the section is consistent
with the intention of Division 1B of this Part.
345. Notes at subsections 102QAF(1) and 102QAF(2) provide that the court may be
required to give notice that the application has been dismissed, with reference to subsection
102QAC(7).
346. New subsection 102QAF(3) provides that the court may dismiss an application
without an oral hearing (either with or without the consent of the applicant). This will assist
with the case management of matters while still preserving the court's discretion to conduct
an oral hearing if it chooses to do so.
347. New subsection 102QAF(4) provides that the court may make an order under this
section in Chambers. This section does not prohibit the court from conducting an oral hearing
if it chooses to do so, but is intended to ensure that matters proceed efficiently and without
undue delay.
348. Subsections 102QAF(3) and 102QAF(4) are intended to provide the court with an
efficient way of dealing with harmful or unmeritorious litigation sought to be brought by
persons already subject to harmful proceedings orders. The court can still afford procedural
fairness to such persons by providing them with the opportunity to make written submissions.
These provisions will give the court the flexibility to determine applications by a person
subject to a harmful proceedings order on the papers alone in Chambers, while preserving the
court's ability to conduct oral hearings.
349. New section 102QAG provides that a court may only grant an application for leave to
institute proceedings if it is satisfied that the proceedings are not frivolous, vexatious or an
abuse of process, and have reasonable prospects of success. The respondent will only be
made aware of the application filed by the applicant at the time of the application being
served on them. This ensures that the respondent is only exposed to applications which the
court has first filtered and assessed.
Item 7 - Division 2 of Part XIB (after the heading)
350. This item inserts a new Subdivision A heading for making vexatious proceedings
orders after the Division 2 heading of Part XIB. This creates a new Subdivision within the
Division.
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Item 8 - Division 3 of Part XIB (heading)
351. This item repeals the heading of Division 3 of Part XIB and substitutes it with a new
Subdivision B heading for the consequences of vexatious proceedings orders
Item 9 - Section 102QE (heading)
352. This item amends the section 102QE heading to specify that the section relates to
proceedings instituted by a person who is subject to a vexatious proceedings order. This
reflects the collocation and inclusion of unmeritorious and harmful proceedings in Part XIB.
Item 10 - Sections 102QF and 102QG (heading)
353. This item amends headings for sections 102QF and 102QG, which concern the court's
power to dismiss or grant an application for leave, to specify that the sections relate to a
person who is subject to a vexatious proceedings order. This reflects the collocation and
inclusion of unmeritorious and harmful proceedings in Part XIB.
Item 11 - Subsection 117(1)
354. This item updates a cross-reference in subsection 117(1) to reflect the collocation of
current section 45A with proposed section 102QAB.
Federal Circuit and Family Court of Australia Act 2021
Item 12 - Subsection 143(5) (note)
355. This item updates a cross-reference in the note to subsection 143(5) to reflect the
collocation of current section 45A of the Family Law Act with proposed section 102QAB and
make it clear that the power of the FCFCOA (Division 2) to give summary judgment of the
court is contained in section 102QAB.
Item 13 - Savings provision
356. This item provides that the repeal of section 45A of the Family Law Act does not
affect any decree or action taken that was in force prior to the commencement of this item.
Item 14 - Application provision
357. This item provides that the amendments made by this Part apply on or after the day
this item commences in relation to proceedings instituted before that day that were not finally
determined before that day; and proceedings instituted on or after that day.
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Part 2 - Overarching purpose of the family law practice and procedure provisions
Family Law Act 1975
Item 15 - Subsection 4(1)
358. This item inserts a definition of 'family law practice and procedure provisions' into
subsection 4(1). This definition provides that the term family law practice and procedure
provisions has the meaning given by subsection 95(4).
Item 16 - Before Division 1 of Part XI
Division 1A--Overarching purpose of the family law practice and procedure provisions
359. This item inserts a new Division 1A of Part XI to broaden and extend the overarching
purpose of family law practice and procedure and an associated duty, to all proceedings
instituted under the Family Law Act.
360. New Division 1A broadens the overarching purpose provisions that currently exist in
the FCFCOA Act, as well as extending the overarching purpose to cover all proceedings
instituted under the Family Law Act. This includes proceedings heard by other courts, such as
the FCWA (when exercising its federal family law jurisdiction) and courts of summary
jurisdiction exercising jurisdiction under the Family Law Act.
361. New section 95 broadens the obligation upon the court, the parties and legal
practitioners to facilitate the safe, just and efficient resolution of disputes in a way that
ensures the safety of families and children and promotes the best interests of the child.
362. New subsection 95(1) provides that the overarching purpose of family law practice
and procedure provisions is to facilitate the just resolution of disputes:
• in a way that ensures the safety of families and children
• in relation to proceedings under the Family Law Act in which the best interests of a
child are the paramount consideration - in a way that promotes the best interests of
the child
• according to law, and
• as quickly, inexpensively and efficiently as possible.
The list of considerations under subsection 95(1) is intended to be a non-hierarchical
structure where all considerations are given equal weight.
363. A note under subsection 95(1) refers the user to subsection 95(4) for the definition of
'family law practice and procedure provisions'.
364. New subsection 95(2) elaborates on the objectives of the overarching purpose. These
include:
• the just determination of all proceedings
• the efficient use of the judicial and administrative resources available for the purposes
of courts exercising jurisdiction in proceedings
• the efficient disposal of the overall caseload of courts exercising jurisdiction in
proceedings
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• the disposal of all proceedings in a timely manner, and
• the resolution of disputes at a cost that is proportionate to the importance and
complexity of the matters in dispute.
365. This provision is intended to remind litigants that costs should be proportionate to the
matters in dispute. It is not only the cost to the parties that is relevant. The efficient use of
court resources needs to be taken into account, while due process is observed. These
objectives are intended to ensure the litigant's and court resources are spent efficiently and
there is a timely resolution of proceedings.
366. New subsection 95(3) provides that the family law practice and procedure provisions,
and any power conferred or duty imposed by them, must be interpreted and applied in the
way that best promotes the overarching purpose.
367. New subsection 95(4) defines 'family law practice and procedure provisions' as, the
applicable Rules of Court and any other provision made by or under the Family Law Act, or
any other Act, with respect to the practice and procedure of the FCFCOA or any other court.
368. New section 96 imposes a duty on parties and lawyers to act consistently with the
overarching purpose, to promote compliance and cooperation among parties, lawyers and the
court to achieve the overarching purpose. This section will extend the duty to comply to all
courts exercising jurisdiction under the Family Law Act, including state family courts and
courts of summary jurisdiction. New section 96 generally mirrors sections 68 and 191 of the
FCFCOA Act.
369. The intention of new section 96 is to support a culture of litigation where family law
disputes are resolved as quickly, inexpensively and efficiently as possible in accordance with
the law, with a focus on the safety and best interests of families and children. Parties and
lawyers who act consistently with this duty will be able to avoid costs orders being made
against them.
370. New subsection 96(1) will impose a duty on parties to proceedings under the Family
Law Act to conduct the entire proceeding, including settlement negotiations, consistently
with the overarching purpose of the family law practice and procedure provisions.
371. New subsection 96(2) will require a party's lawyer to take into account the duty
imposed on the party by subsection 96(1). It also requires the party's lawyer to assist the
party to comply with the duty. In practice, this will require a lawyer to conduct a case in a
manner consistent with the overarching purpose, taking into account the duty imposed on
their client, and advise their client if certain actions are consistent with the overarching
purpose and possible consequences if they fail to comply.
372. If, for example, a party wishes to prolong the litigation as a strategy to increase the
costs of the other party, their lawyer would be obliged to explain that this behaviour is
contrary to the overarching purpose and may have adverse cost consequences.
373. New subsection 96(3) provides that a court may order a party's lawyer to give the
party an estimate of the likely duration of the proceedings or part of the proceedings and the
likely amount of costs the party will have to pay in connection with the proceedings, or part
of the proceedings.
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374. This subsection is intended to assist parties to comply with their duty by making
informed decisions about the progress of their matter. This may have the effect of assisting
the party to prioritise the issues in dispute, or re-consider the resources they wish to allocate
to the litigation.
375. New subsection 96(4) requires a court to take into account any failure to comply with
subsections 96(1) or (2), in awarding costs in proceedings under the Family Law Act. The
intent of this subsection is to enable the courts to have discretion to take into account any
non-compliance with the duty, in making costs orders. This emphasises the court's broad
power to award costs and that the consequences that may follow from failing to comply with
the overarching purpose include an adverse costs order.
376. New subsection 96(5) provides that a court may order a party's lawyer to bear costs
personally.
377. New subsection 96(6) provides that should a court order a lawyer to bear costs
personally for a failure to comply with the duty imposed by subsection 96(2), the lawyer
cannot pass such costs onto their client. This subsection ensures that lawyers take
responsibility for their own failure to comply with their duty under subsection 96(2) and
emphasises that the duty to comply with the overarching purpose extends to parties' legal
representatives.
Item 17 - At the end of subsection 117(2)
378. This item inserts a note under subsection 117(2) of the Family Law Act, referring the
user to new subsections 96(4) to 96(6) of the Family Law Act. This note emphasises the duty
to comply with the overarching purpose and consequences when parties fail to comply. It will
facilitate awareness for users of the legislation that failure to comply may have implications
when costs are awarded.
Item 18 - Application provision
379. This item provides that the amendments made by this Part apply on and after the day
this item commences in relation to proceedings instituted before that day that were not finally
determined before that day; and proceedings instituted on or after that day.
Federal Circuit and Family Court of Australia Act 2021
380. To resolve the overlap with the existing overarching purpose and duty provisions in
the FCFCOA Act, consequential amendments will limit the application of the existing
provisions to civil proceedings other than those under the Family Law Act.
Item 19 - Subsection 7(1) (definition of civil practice and procedure provisions)
381. This item repeals the definition of 'civil practice and procedure provisions' in
subsection 7(1) of the FCFCOA Act and substitutes a new definition. This amendment refers
the user to the definitions in subsection 67(4) in relation to the FCFCOA (Division 1) and
subsection 190(4) in relation to the FCFCOA (Division 2).
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Item 20 - Subsection 7(1) (definition of family law practice and procedure provisions)
382. This item repeals the definition of 'family law practice and procedure provisions' in
subsection 7(1) of the FCFCOA Act. The term will instead be defined in the new
subsection 95(4) of the Family Law Act as per item 16 of Part 2 of Schedule 5 of the Bill.
Item 21 - Subsection 7(1) (paragraph (a) of the definition of overarching purpose)
383. This item omits 'family law practice and procedure provisions' from paragraph (a) of
the definition of overarching purpose in subsection 7(1) and substitutes it with 'civil practice
and procedure provisions'. This amendment intends to limit the application of the existing
overarching purpose for the FCFCOA (Division 1) in the FCFCOA Act to civil proceedings
other than those under the Family Law Act.
Item 22 - Section 67 (heading)
384. This item omits 'family law practice and procedure provisions' from the section 67
heading and substitutes it with 'civil practice and procedure provisions'. This amendment
clarifies that the application of the existing FCFCOA (Division 1) overarching purpose in the
FCFCOA Act is limited to civil proceedings other than those under the Family Law Act.
Item 23 - Subsection 67(1)
385. This item omits 'family law practice and procedure provisions' from subsection 67(1)
and substitutes it with 'civil practice and procedure provisions, in relation to the Federal
Circuit and Family Court of Australia (Division 1)'. This amendment limits the application of
the existing FCFCOA (Division 1) overarching purpose in the FCFCOA Act to civil
proceedings other than those under the Family Law Act.
Item 24 - Subsection 67(1) (note 1)
386. This item repeals note 1 under subsection 67(1) and substitutes it with a new note 1.
New note 1 refers the user to subsection 67(4) of the FCFCOA Act for guidance on the term
civil practice and procedure provisions in relation to the FCFCOA (Division 1).
Item 25 - Subsection 67(3)
387. This item omits 'family law practice and procedure provisions' from subsection 67(3)
and substitutes it with 'civil practice and procedure provisions, in relation to the Federal
Circuit and Family Court of Australia (Division 1),' aligning subsection 67(3) with the
amendments to subsection 67(1).
Item 26 - Subsection 67(4)
388. This item omits 'The family law practice and procedure provisions are the following,'
from subsection 67(4) and substitutes it with 'The civil practice and procedure provisions, in
relation to the Federal Circuit and Family Court of Australia (Division 1), are the following,'.
This amendment provides that, with respect to the practice and procedure of the FCFCOA
(Division 1), the civil practice and procedure provisions are the Rules of Court and any other
provision made by or under the FCFCOA Act or any other Act.
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Item 27 - Subsection 68(3) (note)
389. This item repeals the note to subsection 68(3). The intent of this note will be
contained in the new note under subsection 117(2) of the Family Law Act, as per item 17 of
Part 2 of Schedule 5 of the Bill.
Item 28 - After section 68
68A Proceedings under the Family Law Act 1975
390. This item inserts a new section 68A after section 68. New section 68A clarifies that
sections 67 and 68 do not apply in relation to proceedings under the Family Law Act.
391. This amendment resolves the overlap between the existing overarching purpose and
duty provisions in sections 67 and 68 of the FCFCOA Act and the new expanded overarching
purpose provision that will be included in the Family Law Act.
392. A note after section 68A directs the user to new sections 95 and 96 of the Family Law
Act for the overarching purpose of provisions dealing with the family law practice and
procedure of courts, including for proceedings in the FCFCOA, when instituted under the
Family Law Act. These sections insert an overarching purpose and duty into the Family Law
Act that applies to proceedings under that Act, as per item 16 of Part 2 of Schedule 5 of the
Bill.
Item 29 - Subsection 190(1)
393. This item inserts the text ', in relation to the Federal Circuit and Family Court of
Australia (Division 2),' into subsection 190(1) after the words 'civil practice and procedure
provisions'. This amendment clarifies that the overarching purpose in subsection 190(1)
applies only to the FCFCOA (Division 2).
Item 30 - Subsection 190(1) (note 1)
394. This item repeals note 1 under subsection 190(1) and substitutes it with a new note 1.
New note 1 refers the user to subsection 190(4) for guidance on the term civil practice and
procedure provisions in relation to the FCFCOA (Division 2).
Item 31 - Subsection 190(3)
395. This item inserts the text ', in relation to the Federal Circuit and Family Court of
Australia (Division 2),' into subsection 190(3) after the words 'civil practice and procedure
provisions'. This amendment clarifies that the overarching purpose in subsection 190(1)
applies only to the FCFCOA (Division 2).
Item 32 - Subsection 190(4)
396. This item omits the words 'are the following,' from subsection 190(4) and substitutes
them with ', in relation to the Federal Circuit and Family Court of Australia (Division 2), are
the following'. This amendment provides that with respect to the practice and procedure of
the FCFCOA (Division 2), the civil practice and procedure provisions are the Rules of Court
and any other provision made by or under the FCFCOA Act or any other Act.
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Item 33 - Subsection 191(3) (note)
397. This item repeals the note to subsection 191(3). This amendment resolves an error in
the note to subsection 191(3).
Item 34 - After section 191
191A Proceedings under the Family Law Act 1975
398. This item inserts a new section 191A after section 191. New section 191A clarifies
that sections 190 and 191 do not apply in relation to proceedings under the Family Law Act.
399. This amendment resolves the overlap between the existing overarching purpose and
duty provisions in sections 190 and 191 of the FCFCOA Act and the new expanded
overarching purpose provision in the Family Law Act.
400. A note after new section 191A directs the user to new sections 95 and 96 of the
Family Law Act for the overarching purpose of provisions dealing with family law practice
and procedure of courts, including for proceedings in the FCFCOA, when instituted under the
Family Law Act. These sections insert an overarching purpose and duty into the Family Law
Act that applies to proceedings under that Act, as per item 16 of Part 2 of Schedule 5 of the
Bill.
Item 35 - Application provision
401. This item provides that the amendments of the FCFCOA Act 2021 made by this Part
apply on and after the day this item commences in relation to proceedings instituted before
that day that were not finally determined before that commencement; and proceedings
instituted on or after that day.
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Schedule 6--Communications of details of family law proceedings
Family Law Act 1975
Item 1 - Subsection 4(1)
402. This item inserts a definition of 'communicate' into section 4(1) and refers to the
meaning of 'communicate' contained in the new subsection 114P(1).
Item 2 - Subsection 4(1) (definition of proceedings)
403. This item expands the definition of the term 'proceedings' in subsection 4(1) in
relation to the new Part XIVB by referencing the new definition of 'proceedings' contained in
the new Part XIVB. This is to make clear that the new Part XIVB, which restricts
communication of identifiable information connected to family law proceedings, also applies
to a part of proceedings.
Item 3 - Subsection 4(1)
404. This item inserts a definition for the term 'public' in subsection 4(1) and refers to the
meaning of 'public' contained in new subsection 114P(2).
Item 4 - Section 102PC (heading)
405. Part XIA of the Family Law Act contains provisions that relate to court-based
suppression and non-publication orders. Section 102PC of that Part provides that the existing
section 121 and Part XIA do not limit each other. This item will replace the existing reference
to 'section 121' with 'Part XIVB' in the heading of section 102PC as the Bill proposes to
repeal section 121 of the Family Law Act and replace it with new Part XIVB.
Item 5 - Section 102PC
406. Part XIA of the Family Law Act contains provisions that relate to court-based
suppression and non-publication orders. Section 102PC of that Part provides that the existing
section 121 and Part XIA do not limit each other. As the Bill proposes to repeal section 121
of the Family Law Act and replace it with new Part XIVB, this item will replace the existing
reference to section 121 with Part XIVB in section 102PC of the Family Law Act. This will
ensure that Part XIA provisions relating to suppression and non-publication orders and the
new Part XIVB provisions relating to restrictions on public communications of identifiable
information do not limit each other.
Item 6 - After Part XIVA
Part XIVB--Restriction on the communication of accounts and lists of proceedings
407. This item inserts new Part XIVB into the Family Law Act which will replace section
121 of the Family Law Act. The new Part will continue to protect the privacy of families and
other persons connected with family law proceedings by restricting public communication of
information that identifies children, families and other persons involved in family law
matters. The new Part aims to clarify the law in this area and does not introduce any
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significant changes to the existing law in section 121 of the Family Law Act, including in
relation to the offences and penalties.
408. In line with the ALRC Report recommendation 56, the new Part XIVB also aims to
simplify and clarify the scope and operation of the restrictions on the public communicating
identifiable information that relates to family law proceedings. The ALRC Report noted
section 121 can create confusion about the sharing of information for professional regulators
and Government agencies or other organisations who provide services to families who are
involved in family law proceedings. The new Part intends to make clear the circumstances
within which information can be shared with such bodies and also clarifies that social media
and internet-based communications, to the public, may constitute a breach of the new Part.
As is the case with section 121, the new Part is not intended to apply to private
communications. Therefore, the new Part does not substantially change the existing law
contained in section 121 and instead aims to improve readability and provide clarity about
prohibited communication.
409. New section 114N contains a simplified outline of the two offences contained in new
Part XIVB and summarises when communications do not constitute communications to the
public for the purposes of the new Part.
410. New section 114P provides the meaning of terms 'communicate', 'proceedings' and
'public' used in new Part XIVB. The term 'communicate' forms part of the two offences
contained in new sections 114Q and 114R and is intended to capture a broad range of
communications. These include publication in a book, newspaper, magazine or other written
publication, broadcast by radio or television, public exhibition, broadcast or publication or
other communication by means of the internet. An example is provided to clarify that the
term 'communicate' includes online communications via social media. The term
'proceedings' clarifies that the new Part can apply information relating to a part of
proceedings. The term 'public' is broad, intended to be given its common meaning and
includes a section of the public.
411. New subsection 114Q(1) establishes that it is an offence if a person:
• communicates to the public an account of family law proceedings, and
• the account identifies a party to the proceedings, a witness in the proceedings, a
person related to, or associated with, a party to the proceedings, or a person who is, or
alleged to be, in any other way concerned in the matter to which the proceedings
relate.
412. This section also contains the penalty for this offence which is a maximum of one
year imprisonment, consistent with the existing penalty under section 121. The penalty
reflects the need to protect the identity of persons involved in family law proceedings,
including children, to avoid causing undue distress, to protect against intrusive media
reporting and to protect the safety of all persons.
413. New subsection 114Q(2) permits a court to approve or direct communication that
would otherwise be in breach of this section. This is to ensure that there is a power to
facilitate communications in circumstances that may not be provided for by the Family Law
Act but are otherwise considered necessary or appropriate by the court.
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414. Subsection 114Q(2) also contains a note that makes clear that a defendant bears an
evidential burden in relation to the matters in this subsection as per the principle codified in
subsection 13.3(3) of the Criminal Code 1995 (Cth).
415. New subsection 114Q(3) also provides examples of information that may be
considered sufficient to identify a person to a member of the public. These include, but are
not limited to:
• a picture, recording, or physical description of the person
• a name or title that identifies the person
• an address or location where the person resides or works
• details of the person's employment, paid or voluntary
• the relationship or other connection between the person and an identified person or
business
• the person's political, philosophical or religious beliefs, and
• any real or personal property associated with the person.
416. This offence is not intended to apply to information that is not, at the time of public
communication, identifiable but post-communication becomes identifiable due to some other
identifying factor not arising from the initial communication.
417. These examples substantially replicate the existing law contained in section 121 but
have been rewritten for clarity to assist with understandings of the scope and limitations of
the offence.
418. New subsection 114R(1) establishes that it is an offence for a person to communicate
to the public a list of proceedings under the Family Law Act that identifies the parties to the
proceedings by reference to their names. Subsection 114R(1) also contains the penalty for
this offence which is a maximum of one year imprisonment, consistent with the existing
penalty under section 121. The penalty reflects the need to protect the identity of persons
involved in family law proceedings, including children, to avoid causing undue distress, to
protect against intrusive media reporting and to protect the safety of all persons.
419. Under subsection 114R(2), it is not an offence to communicate to the public a list of
proceedings under the Family Law Act that identify the parties to the proceedings if the
communication is by a relevant court or tribunal (or its officers) and is a list of proceedings
that that court or tribunal is dealing with. This is to allow a court to publish its necessary
daily lists setting out the parties, court rooms and judicial officers hearing the proceedings. It
is also not a breach of this section if the court directs, approves or otherwise states in its
Rules of Court that the communication is permitted. This is to ensure that there is a power to
facilitate communications in circumstances that may not be provided for by the Family Law
Act but are otherwise considered necessary or appropriate by the court. The section includes
a note to make clear that the defendant bears an evidential burden in relation to approved
communications under the Family Law Act or by the court.
420. This offence is not intended to apply to information that is not, at the time of public
communication, identifiable but post-communication becomes identifiable due to some other
identifying factor not arising from the initial communication.
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421. Subsection 114R(2) also contains a note that makes clear that a defendant bears an
evidential burden in relation to the matters in this subsection as per the principle codified in
subsection 13.3(3) of the Criminal Code.
422. New section 114S sets out the circumstances whereby a communication to a person or
body is not considered a communication to the public.
423. Subsection 114S(1) provides that a communication to a person or body is not a
communication to the public if the person or body has a significant and legitimate interest in
the subject matter of the communication and that interest is substantially greater than, or
different from, the interests of members of the public generally. This subsection is intended to
apply to a range of circumstances, including in relation to communications with professional
regulators and Government agencies or other organisations who provide services to families
who are involved in family law proceedings. It only applies where there is a significant and
legitimate interest in the subject matter of the communication and that interest is substantially
greater than, or different from, the interests of members of the public generally. For example,
a party may communicate with a child welfare organisation and include information that
identifies the other party to proceedings. Subsection 114S(1) is not intended to exclude media
reporting from being subject to the offences under the new Part.
424. Subsection 114S(1) contains a note that makes it clear that a defendant bears an
evidential burden in relation to the matters in this subsection as per the principle codified in
subsection 13.3(3) of the Criminal Code.
425. Subsection 114S(2) outlines other circumstances where a communication will not be
considered a communication to the public. These include private communication between a
party to proceedings and a person who is a family member or friend of the party, and
communication to a prescribed state or territory child welfare authority. They also include
communication to a body responsible for disciplining members of a profession in a state or
territory, such as a law society, communicating information for legal aid grant purposes and
other forms of communication as set out in the provision. Subsection 114S(2) reflects the
permitted communications currently contained in section 121 of the Family Law Act.
426. In considering whether a communication is a communication to the public, the list of
communications provided in subsection 114S(2) is not exhaustive or intended to limit
subsection 114S(1). This broad approach would ensure that communication for a legitimate
purpose to a person with a substantially different or greater interest in the communication
than a member of the public would not constitute an offence.
427. Section 114T provides that proceedings for an offence against subsection 114Q(1) or
114R(1) must not be commenced without the written consent of the Director of Public
Prosecutions. This is consistent with the current subsection 121(8). This is an important
safeguard in addition to the Prosecution Policy of the Commonwealth which requires that a
prosecution only be pursued where there is sufficient evidence to prosecute the case, and the
prosecution would be in the public interest.
Item 7 - Section 121
428. This item proposes to repeal section 121 which will be replaced with Part XIVB.
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Item 8 - Saving of regulations
429. This item ensures that any Regulations that were in force for the purposes of
paragraph 121(9)(aa) of the Family Law Act, which relates to the communication of
pleadings, transcripts of evidence or other documents to prescribed authorities of states and
territories that have responsibilities relating to the welfare of children, continue to be in force
as if they were regulations for the purposes of the new paragraph 114S(2)(c) which is the
equivalent provision to paragraph 121(9)(aa).
Item 9 - Application provision
430. This item provides that Part XIVB of the Family Law Act applies in relation to acts or
omissions occurring on or after the day this item commences.
Federal Circuit and Family Court of Australia Act 2021
Item 10 - At the end of subsection 98(2)
431. Section 98(1) of the FCFCOA Act 2021 allows the Chief Justice to make Rules of
Court delegating a range of powers of Division 1 of the FCFCOA to a delegate or prescribed
class of delegate. Section 98(2) sets out the kinds of powers that can be delegated. Item 10 of
this Schedule proposes to expressly include, within the list of powers that can be delegated
under section 98(2), the power of the court to give directions, or approve communications
under the new Part XIVB.
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Schedule 7--Family report writers
Family Law Act 1975
Item 1 - Subsection 4(1)
432. This item inserts definitions for inclusion in subsection 4(1).
433. A definition of 'designated family report', 'family report writer' is provided in item 4.
A 'family report' and 'family report writer' have been terms used and understood for family
law purposes, but have not been defined in the Family Law Act. It is essential to define these
terms to establish who the regulations that prescribe standards and requirements for family
report writers will apply to.
434. This item also inserts a definition of 'regulator' by referencing new
paragraph 11K(2)(b) in item 4, which is the person or persons responsible for recognition,
monitoring and enforcement of standards and requirements provided for in the regulations.
435. This item inserts a definition for 'Regulatory Powers Act' to refer to the Regulatory
Powers (Standard Provisions) Act 2014, and defines 'civil penalty provision' as having the
same meaning as in the Regulatory Powers Act. Defining these terms provides greater clarity
and simplicity for the purposes of references to civil penalty provisions in new paragraph
11K(4)(b), and new subsections 11K(5)-(8), which relate to consequences of non-compliance
by family report writers with standards and requirements.
Item 2 - Section 11D
436. This item and item 3 amends section 11D into two subsections. The substantive text
of subsection 11D(1) is unchanged from the text of section 11D that prevailed prior to this
amendment. Subsection 11D(1) provides that a family consultant, in performing functions as
a family consultant, has the same protection and immunity as a judge of the FCFCOA
(Division 1) has in performing the functions of a judge. As outlined in the Explanatory
Memorandum for this provision in the Family Law Amendment (Shared Parental
Responsibility) Bill 2005, family consultants require immunity as their work directly feeds
into the court's decision-making process. Without immunity, individuals unhappy with the
court's decision may endeavour to attack the foundations of that decision by challenging the
family consultant. Any problems with the court's decisions should be dealt with directly
through the appeals process.
Item 3 - At the end of section 11D
437. This item inserts a new subsection 11D(2) to confine the immunity conferred on
family consultants in new subsection 11D(1). New subsection 11D(2) provides that if a
family consultant is also a family report writer (as defined in new section 11H), the protection
and immunity provided under subsection 11D(1) is limited in certain circumstances. New
paragraph 11D(2)(a) provides that the protection and immunity does not relieve the family
consultant of their obligations under regulations made to prescribe standards and
requirements for family report writers under new section 11K in item 4. New paragraph
11D(2)(b) provides that the protection and immunity also does not extend to action taken to
enforce such regulations.
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438. This item ensures that any regulations made under section 11K can apply to family
consultants in the same way as they would apply other classes of family report writers, and
are not avoided as a consequence of the protection and immunity in section 11D. This
limitation is intended to be confined to the effective application and enforcement of the
regulations under section 11K, and is not intended to otherwise affect the immunity conferred
on family consultants by section 11D.
Item 4 - After Part III
Part IIIAA--Family Report Writers
439. This item inserts a new Part IIIAA about family report writers. Part IIIAA provides: a
power to make regulations about family report writers; a framework and parameters for the
regulation of family report writers; and definitions to clarify the application of the
regulations.
440. This item inserts a new section 11H to provide the definition of 'family report writer'.
This item also inserts a new section 11J to provide the definition of 'designated family
report'. The Family Law Act presently does not define 'family report writer' or 'family
report'. Defining these terms provides clarity about the application of the future regulations,
standards and requirements.
441. New section 11H defines a 'family report writer' as any individual who prepares a
'designated family report'. This definition of family report writer is intended to capture the
activity of preparing a 'designated family report', rather than specifying classes or cohorts of
individuals to be family report writers. The definition is intended to capture both family
consultants and single expert witnesses who prepare reports in family law proceedings that
meet the definition of a 'designated family report'. It is not intended to capture individuals
who prepare reports that do not meet the definition of a 'designated family report' at new
section 11J.
442. New section 11J defines 'designated family report'. The definition is intended to
capture those reports commonly understood in family law matters as a 'family report'. These
are reports typically prepared by social science professionals following a family assessment,
which set out expert views and advice to the court on parenting arrangements for children for
the purposes of the court making parenting orders. New subsection 11J(1) establishes
requirements in paragraphs 11J(1)(a)-(c), all of which must be satisfied for a report to be a
designated family report; and new subsection 11J(2) provides detail for the purposes of
assisting to determine whether a report meets the requirements for a designated family report
in subsection 11J(1). Subsections 11J(1) and (2) must be read together because while a broad
range of reports can be prepared or ordered for the purposes of the Family Law Act not all
reports are intended to fall within the definition of designated family reports and be subject to
the regulations.
443. New subsection 11J(1) focusses on the method of preparing, and the content and
function of a report, to establish whether it meets the definition of a designated family report.
New paragraph 11J(1)(a) provides that to meet the definition, a report must follow a family
assessment, which is a professional forensic assessment undertaken to assist a court and/or
the parties decide on parenting arrangements for children of separated parents or caregivers.
It is an independent, professional and comprehensive forensic appraisal of the family, done
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from a social science perspective. The assessment provides information about the needs of
children and their relationships with their parents and other significant adults, and of the
attitudes and parental capacities of the adults with regard to the children's needs. The
definition reflects and is consistent with the description and purpose of family assessments
provided by the Australian Standards of Practice for Family Assessments and Reporting, that
are intended to guide the preparation of family reports. Where possible and appropriate the
report will also often, but not always, include obtaining and conveying the views of a child.
The views of a child are required when designated reports are ordered under section 62G.
444. New paragraph 11J(1)(b) provides that a designated family report is a report with
content that sets out the expert's views and advice on parenting arrangements, for the
purposes of parenting orders being made by the court. This is intended to ensure that other
reports, which are not within the common understanding of a family report, are not captured
by the definition in new section 11J. Reports not intended to be captured include specialist
medical reports such as a psychiatric evaluation or treating practitioner report, and expert
reports provided to address a specific, narrowly defined issue or event identified by the court.
445. New paragraph 11J(1)(c)(i) provides that to meet the definition of 'designated family
report', a report must also be covered by new subsection 11J(2). Subsection 11J(2) identifies
the provisions under the Family Law Act that establish powers under which a family report,
as well as other reports, may be ordered or prepared. New paragraph 11J(1)(c)(ii) enables the
regulations to exclude reports from the definition of 'designated family report'. As the
provisions under which a court may order a report for the purposes of proceedings are broad
and capture more than designated family reports, this paragraph enables reports to be
excluded by regulation for the avoidance of doubt where they are not intended to be the
subject of regulation. This may include circumstances where it is considered there are
sufficient existing regulatory mechanisms surrounding the preparation of a report, or where it
is found that reports are unintentionally falling within the definition of a 'designated family
report'. For example, a specialised report or a report that provides advice about specific
issues such as a psychiatric evaluation but does not involve a family assessment would not
meet the definition of a designated report and would not be required to be prepared by an
individual who meets the standards and requirements prescribed by new section 11K.
446. New subsection 11J(2) identifies the range of provisions under the Family Law Act
that establish powers under which a family report - that is a designated family report which is
intended to be the subject of regulation - may be ordered. These include reports prepared
under section 11F, subsection 55A(2), subsection 62G(2) and section 68M for the court or an
ICL. New paragraph 11J(2)(e) also includes reports that are prepared for parties or for the
court for the purposes of proceedings before the court, such as by single expert witnesses, as
may be provided by the relevant rules of court or other subordinate legislation. However,
these identified provisions of the Family Law Act also enable the court to order other reports,
which are not intended to fall within the definition of designated family report. These other
reports include specialised reports prepared by experts where there is no comprehensive
forensic social science assessment of the family, such as specialised medical reports, or
specific issues reports which are limited reports targeting a particular individual, issue or
specific event identified by the court. Therefore, to be considered a designated family report
and subject to the regulations, a report that satisfies new subsection 11J(2) must also meet the
other requirements in subsection 11J(1).
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447. This item inserts a new section 11K which establishes the power for Government to
make regulations to prescribe standards and requirements for family report writers, including
consequences for non-compliance. New section11K also establishes a framework of the
issues the regulations may address. The regulations would be disallowable, to allow
Parliament to have appropriate oversight and scrutiny of the delegated powers.
448. New subsection 11K(1) enables regulations to be made that establish standards and
requirements that must be met to prepare and provide designated family reports in family law
matters. Subsection 11K(1) also provides that the regulations may establish and provide
consequences for non-compliance with regulated standards and requirements. New
subsection 11K(2) elaborates on what standards and requirements may encapsulate. New
subsection 11K(4) provides the types of consequences the regulations may provide for
non-compliance.
449. It is necessary to establish standards and requirements for family report writers via
regulations. Regulations enable the Government to rapidly respond to any issues or changing
circumstances that arise affecting family report writers, particularly those who are also
psychologists or psychiatrists. This is to ensure an appropriate balance between expectations
and requirements as family report writers, and any other requirements arising as part of their
professional registration under the Australian Health Practitioner Regulation Agency (Ahpra).
450. New subsection 11K(1) also provides that regulations, in full or in part, may apply to
all family report writers, or a subset of family report writers. Family report writers are
typically from a variety of social science professions, including but not limited to social
work, psychology or psychiatry. Family report writers are also engaged to write reports in a
variety of ways, either as family consultants employed by the family law courts or appointed
under Regulation 7 of the Family Law Regulations 1984, or as single expert witnesses jointly
appointed by, or on behalf of, both parties to the proceeding as allowed for in the relevant
rules of court. Given the different professional backgrounds and employment types, family
report writers have diverse regulatory, professional and employment obligations that do not
apply equally to each individual. For example, a family report writer who is also a registered
psychologist, is regulated by Ahpra. However, a person with a psychology degree and other
work experience, but not registered as a psychologist, would not be regulated by Ahpra.
Providing that regulations may apply to all family report writers, or a class or classes of
family report writers, will enable standards and requirements, as well as consequences for
non-compliance with standards and requirements, to be established that are fit for purpose
and facilitate an equitable regulatory approach across all professionals. Competency and
accountability requirements for family report writers as established by the regulations can
leverage or work within existing regulatory frameworks where appropriate, to reduce
duplication and unnecessary additional regulatory burden.
451. New subsection 11K(2) provides comprehensive parameters for the types of matters
the proposed regulations may cover in relation to standards and requirements for family
report writers.
452. New paragraph 11K(2)(a) provides that regulations may provide for how compliance
with prescribed standards and requirements is to be ascertained and recognised (for example
by certification, registration, accreditation or other mechanism). It also provides that the
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regulations may stipulate how compliance may be checked, scrutinised, verified and
enforced.
453. New paragraph 11K(2)(b) provides that regulations may be made that establish who is
responsible for recognition, monitoring and compliance of family report writers with the
standards and requirements established by regulations. This may be more than one person.
Such a person or persons would occupy a relevant position in a relevant entity which is
capable of making a decision about whether a person meets the standards and requirements of
a family report writer. Such a person or persons is also defined by the new paragraph
11K(2)(b) as a 'regulator', and this definition applies only for the purposes of new Part
IIIAA.
454. New paragraph 11K(2)(c) provides that the proposed regulations may prescribe how a
person who wishes to be recognised as a family report writer is to demonstrate that they meet
the standards and requirements. The regulations may also prescribe how a family report
writer is to maintain their recognition once this has been obtained. This includes that the
regulations may provide for certain actions or activities to be undertaken, the types of
information that is to be provided, and the timing and form of these duties and provision of
information. Certain information and documentation may also be required to be provided to a
regulator as defined in new paragraph 11K(2)(b), to assist with recognition, monitoring and
enforcement of compliance with prescribed standards and requirements.
455. New paragraph 11K(2)(d) provides that regulations may be made in relation to the
circumstances in which a regulator may collect, use and share information and documents for
the purposes of recognising, monitoring and enforcing compliance of family report writers
with prescribed standards and requirements. This is intended to ensure that a person or
persons responsible for recognising, monitoring and enforcing compliance with standards and
requirements is able to access the necessary evidence and advice needed to undertake this
function in a timely and efficient manner. It also provides that the regulations may establish
how and with whom regulators may share information and documentation, which may be
necessary if the regulator is seeking external independent advice or evidence to verify
information from a family report writer - for example that they are a member of a particular
industry association, have completed certain training, or have obtained certain professional
memberships. It may also be necessary for the regulator to share information with another
entity - such as the Ahpra, or with law enforcement.
456. New paragraph 11K(2)(e) enables regulations to deal with the review of decisions,
including those of a regulator, that affect recognition of a family report writer's compliance
with prescribed standards and requirements. This is intended to enable the regulations to
provide for administrative review of decisions made by a regulator where appropriate.
457. New paragraph 11K(2)(f) provides for regulations to include processes for dealing
with people who make false or misleading representations about a family report writer's
compliance with prescribed standards and requirements. Depending on who makes the false
or misleading representation - whether it be a person who is a family report writer or seeking
to become one, or someone relied upon to provide advice or evidence about a report writer's
compliance with requirements and standards, such as a referee or person employed by an
industry association or training entity - different responses may be required. This is intended
to enhance public confidence through ensuring that information regarding which
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professionals are compliant with prescribed standards and requirements is accurate and
reliable. It also provides that other relevant entities, including law enforcement, can be made
aware of issues such as potential fraud or employee misconduct.
458. New paragraph 11K(2)(g) enables regulations to be made in relation to processes for
handling complaints received in relation to family report writers. Assessment of complaints
may be important to establishing whether a family report writer meets the standards and
requirements expected of the profession as outlined in the regulations. Noting that there may
be more than one entity to which a complaint about a professional who prepares family
reports may be made, the large number of family law matters for which a family report is
ordered, and that some matters may still be subject to family law proceedings, it is important
the regulations can establish a streamlined, efficient, informative and fair process for
receiving and managing complaints.
459. New paragraph 11K(2)(h) enables regulations to be made in relation to training that is
expected to be undertaken by, or to become, a family report writer. As family report writers
make recommendations to the court about parenting arrangements that affect the lives of
parents and children, it is essential they have appropriate skills to make this assessment.
These skills can be established and enhanced through training in key issues including
recognising and reporting on: family violence risks and impacts; the impact of trauma on
children and parenting, and other issues impacting engagement with and safe parenting of
children. The social science professionals who undertake family reports do not come from the
same professional backgrounds, and some have not undertaken previous or current training or
professional development in all matters essential to family report writing. The regulations
may identify relevant training requirements, including topic and frequency of training, and
establish how such training is to be identified, selected and provided, to ensure consistency in
skill and practice of family report writers. Having training requirements in regulations mean
they can be responsive to industry best practice and standards.
460. New paragraph 11K(2)(i) provides that regulations may be made in relation to the
fees that can be charged to family report writers for them to be recognised and maintain
recognition as a family report writer under the regulations. This would reflect the services
provided to them to recognise their compliance with prescribed standards and requirements.
The regulations would not establish fees to recover other costs associated with the general
administration of a regulatory scheme.
461. New paragraph 11K(2)(j) provides that regulations may be made in relation to the
publication of the names of family report writers who are recognised as complying with
prescribed standards and requirements. The intention is to enable family report writers who
meet standards and requirements to have their name included on a list of family report writers
considered compliant and therefore eligible to prepare a family report for family law matters.
462. New paragraph 11K(2)(k) enables regulations to prescribe that certain information
about family report writers, who have been assessed as compliant with standards and
requirements and named in accordance with new paragraph 11K(2)(j), may be made publicly
available. This information is intended to enable the court, parties to proceedings and the
public to have access to relevant information about a family report writer. It would also
enable a compliant family report writer to communicate relevant information to prospective
parties. Information that the regulations may deem relevant and suitable for publishing
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include information about a family report writer's qualifications, training and experience,
availability, fees for their services, compliance status, relevant association memberships,
registrations (such as with the Ahpra) or employment, and any other matters relevant to their
role in preparing designated reports. As with all the regulatory provisions, any regulations
providing for the publication of information about family report writers will be disallowable,
and subject to oversight and scrutiny by Parliament.
463. New paragraph 11K(2)(l) enables the proposed regulations to include standards and
requirements in relation to the content of designated family reports. This would facilitate the
identification of key topics of interest and a consistent baseline of issues to be identified in a
report and brought to the court's attention. For example, as identification and risk
management of family violence is a key issue in family law matters, the regulations may
prescribe that a designated family report must address this issue. This would not preclude
other issues from being raised by a family report writer in a report.
464. New subsection 11K(3) provides that regulations dealing with the publication of
information about named family report writers as provided for in new paragraph 11K(2)(k)
must not require or allow the publication of personal information as defined in the Privacy
Act 1988, about a child or other individual to whom a report relates. This provision is inserted
to ensure existing privacy protections for parties who are the subject of family law matters
prevail.
465. New subsection 11K(4) enables the regulations to provide for consequences for
non-compliance with prescribed standards and requirements for family report writers.
Consequences for non-compliance have been included as any regulatory scheme or approach
establishing standards and requirements for family report writers will be ineffective if family
report writers are able to continue to prepare designated family reports outside of that
scheme, once established. The consequences provided for in new subsection 11K(4) are
non-exhaustive, and provide for a spectrum of consequences that can respond to the cause
and outcome of the non-compliance.
466. New paragraphs 11K(4)(a) and 11K(4)(b) provide for offences and civil penalty
provisions respectively, each not exceeding 30 penalty units, which can be applied to family
report writers who do not comply with the standards and requirements established by the
regulations. A maximum of 30 penalty units for these types of matters is consistent with
penalty comparisons across Commonwealth legislation, and consistent with the
Attorney-General's Department's A Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers, for conduct in relation to matters such as the
giving and withholding of information, failures to keep records and failures to comply with
notices.
467. New paragraph 11K(4)(b) also triggers the enforcement powers of Part 4 of the
Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) so that any civil
penalty provisions created by the regulations for the purposes of section 11K are enforceable
under Part 4 of that Act.
468. Authorising the regulations to create offences and impose penalties as provided in
new subsection 11(K)(4) is necessary to ensure sufficient detail and accurate targeting of
behaviour to support the effective operation of the regulatory scheme for family report
writers. Matters to be dealt with through offences or penalties for the purposes of regulating
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family report writers may include but are not limited to: circumstances of deliberate
dishonesty, such as dishonest representations regarding a person's status as a recognised
family report writer; knowingly providing false or misleading information or documents, or
failing to notify a regulator of relevant changes in circumstances, should this be required by
the regulations, for example, failure to disclose a recent criminal conviction.
469. The capacity to establish penalties in the regulations as provided by new subsection
11(K)(4) is important to deter and correct behaviour and actions that significantly impact
others, particularly parties to family law matters and their children, or the court. For example,
if a family report has been prepared when the writer was knowingly aware that they did not
meet the standards and requirements, this would mean that the report may not be of a quality
suitable to the court and therefore could not be relied upon, and that another report might
need to be ordered resulting in further delay, costs and inconvenience. Such a report may also
include unsafe or inappropriate recommendations in relation to children, which may form the
basis of a decision by parties to family law proceedings to settle their matter prior to the
report being tested through a trial process.
470. New paragraph 11K(4)(c) enables the regulations to provide for the suspension or
cancellation of recognition of a family report writer's compliance. This provides that the
regulations may provide powers to the regulator that assist to enforce the standards and
requirements established for family report writers. New paragraph 11K(4)(d) enables
regulations to provide that the court must not have regard to designated reports prepared by a
family report writer who is not recognised or whose recognition is suspended or cancelled.
New paragraph 11K(4)(e) provides that the regulations may include a prohibition on
non-recognised family report writers from preparing designated family reports. These
consequences will help ensure adherence to any regulations made that set standards and
requirements for family report writers. These consequences also assist to prevent
non-recognised or non-compliant professionals preparing designated family reports for
parties to proceedings or the courts, and the court from considering designated family reports
that may not be to expected standards and requirements.
471. New subsection 11K(5) provides that civil penalty provisions prescribed by
regulations for the purposes of new section 11K are enforceable under Part 4 of the
Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act). The
Regulatory Powers Act creates a standard suite of provisions in relation to monitoring and
investigation powers, as well as enforcement, including through the use of civil penalties. The
standard provisions of the Regulatory Powers Act are an accepted baseline of powers
required for an effective monitoring, investigation or enforcement regulatory regime. They
provide consistency and clarity in relation to the exercise of powers across regulatory
regimes. Part 4 of the Regulatory Powers Act provides a framework for the use of civil
penalties to enforce civil penalty provisions. Subsection 82(6) of the Regulatory Powers Act
requires that a relevant court take into account all relevant matters in determining a penalty.
472. New subsection 11K(6) prescribes who is an 'authorised applicant' for the purposes
of the exercise of powers under Part 4 of the Regulatory Powers Act. An 'authorised
applicant', defined to include 'each regulator' as defined in new paragraph 11K(2)(b), and the
Secretary of the Department, being the Attorney-General's Department, is able to exercise
powers under Part 4, including by making an application to a relevant court for a civil penalty
order. The prescribing of who is an 'authorised applicant' is necessary to enable the effective
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operation of the provisions in Part 4 of the Regulatory Powers Act and to give effect to the
penalties established by the regulations. The inclusion of both a 'regulator' and the Secretary
of the Department will enable a targeted and fit for purpose approach to any future regulation,
to account for the diversity of professionals preparing family reports, and the need to
minimise additional regulatory burden where possible.
473. New subsection 11K(7) enables the Secretary of the Department to delegate their
powers and functions in relation to civil penalty provisions under Part IIIAA to a member of
the Senior Executive Service or acting Senior Executive Service within the
Attorney-General's Department. This delegation is consistent with the delegation of other
powers by the Secretary to senior members of the Australian Public Service, and reflects the
importance of continued and timely decision-making in circumstances where the person on
whom power is conferred is not available.
474. New subsection 11K(8) prescribes the courts that are the relevant courts to decide the
civil penalty provisions. These are the Federal Court, the Federal Circuit and Family Court of
Australia or a court of a state or territory that has jurisdiction in relation to matters arising
under the Family Law Act. Prescribing these courts is necessary for the civil penalty
provisions in Part 4 of the Regulatory Powers Act to be effective. These courts have been
selected as they will have a relevant understanding of and experience in the role and function
of family report writers and the issues to which the penalties would relate, including the
impact of not having met the regulated standards and requirements.
475. New section 11L permits the family law courts to disclose certain documents to a
regulator as defined in new paragraph 11K(2)(b) to enable the regulator to perform functions
under the regulations. Any scheme established under the regulations that enables the
investigation of complaints or monitoring of compliance by family report writers with
standards and requirements will require a regulator to have access to relevant documents.
New paragraph 11L(a) permits the court to disclose to a regulator a designated family report
prepared for or at the direction of the court, or for a party to proceedings before the court.
New paragraph 11L(b) permits the court to disclose to a regulator a final order made by the
court in proceedings for which a designated family report was prepared. This provision is
intended to prevail over any restrictions of publication provided for in the Family Law Act.
476. New section 11M provides immunity for a regulator in civil and criminal proceedings
in certain circumstances. Such circumstances are where actions taken or not taken by a
regulator were done in good faith as part of the role and performance of the regulator,
consistent with regulations made under new section 11K. This would include actions taken or
not taken that are consistent with powers and processes set out in the Family Law Act and the
proposed regulations, based on information available to the regulator at the time.
Item 5 - At the end of subsection 67ZA(1)
477. Item 5 inserts new paragraph 67ZA(1)(i) to include family report writers in the list of
professionals in subsection 67ZA(1) to whom section 67ZA applies. Section 67ZA requires
notification to child welfare authorities of reasonably held suspicions of abuse or risk of
abuse of a child. The addition of family report writers to this list of professionals is consistent
with types of professionals already holding obligations under Subsection 67ZA(1), such as
family consultants, family counsellors, family dispute resolution practitioners and lawyers
independently representing a child's interests. Imposing notification obligations on family
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report writers is also consistent with the role and nature of the work of family report writers
in undertaking a family assessment, seeking the views of the child or children involved, and
providing expert views on parenting arrangements for the purposes of the court making
parenting orders.
Item 6 - At the end of subsection 111CV(1A)
478. Item 6 inserts new paragraph 111CV(1A)(j) to include family report writers in the list
of persons covered by section 111CV. Section 111CV creates obligations on a court and
certain people to inform another country about information held by that person about serious
danger to a child whose residence has moved to the other country or who is present in the
other country. Given the nature of the work performed by family report writers and their role
in undertaking family assessments, including seeking the views of the child or children
involved, it is appropriate that these professionals also hold obligations to provide
information to relevant authorities regarding any serious danger to a child. Including family
report writers in subsection 111CV(1A) is also consistent with the types of professionals who
already have obligation to inform under this provision, including family consultants, family
counsellors, family dispute resolution practitioners and arbitrators.
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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
Item 1 - Subsection 284(1)
479. Subsection 284(1) of the FCFCOA Act provides that the minister must cause a review
of the operation of the FCFCOA Act to be conducted within 6 months after the fifth
anniversary of that Act's commencement. This would trigger a review of the FCFCOA Act to
be conducted between 1 September 2026 and 31 March 2027.
480. This item amends subsection 284(1) to provide that the minister must cause the
review within 6 months after the third anniversary of the FCFCOA Act's commencement.
This would bring forward the review by 2 years. It would be conducted between 1 September
2024 and 31 March 2025.
481. The substituted subsection provides for a timelier assessment of the effectiveness and
impact of the FCFCOA Act on both the operation of the Courts and its users. This is intended
to enable earlier Government decision-making on improvements that may be required to the
FCFCOA Act.
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Schedule 9--Dual appointments to the Family Court of Western Australia and the
FCFCOA (Division 1)
Federal Circuit and Family Court of Australia Act 2021
482. Items 1 to 3 provide an express legislative provision to clarify that a person can be
dually appointed to the FCWA and the FCFCOA (Division 1).
483. Prior to the commencement of the FCFCOA Act in September 2021, section 22(2A)
of the Family Law Act explicitly provided that a judge can be dually appointed to the Family
Court of a State and the Family Court of Australia. Dual appointments of this nature enabled
appeals arising from the FCWA, under the Family Law Act, to be heard by the Family Court
of Australia. An equivalent provision to section 22(2A) of the Family Law Act was not
included in the FCFCOA Act.
484. The absence of an express power to dually appoint judges does not prevent dual
appointments being made. However, it is considered preferable to have an express legislative
basis for dual appointments as was the case prior to 1 September 2021.
485. This amendment will operate both prospectively and retrospectively to provide clarity
in relation to the position from 1 September 2021. This amendment will restore the previous
legislative arrangements.
Item 1 - Section 23
486. Item 1 converts section 23 of the FCFCOA Act into subsection 23(1) to accommodate
the inclusion of new subsection 23(2) (see item 2).
Item 2 - At the end of section 23
487. Item 2 inserts subsection 23(2) which explicitly provides that a person may be
appointed to the office of judge of the FCFCOA (Division 1) regardless of whether they hold
office as a judge of a Family Court of a State such as the FCWA. In addition, a person may
serve in the office of judge of the FCFCOA (Division 1) even if they continue to hold office
and serve as a judge of a Family Court of a State.
Item 3 - Application provision
488. Item 3 provides that the amendments to section 23 of the FCFCOA Act apply to the
appointment of a person as a judge, regardless of when they were appointed.
489. This provision is intended to clarify that any appointments that preceded the
commencement of this item are valid.
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