Commonwealth Coat of Arms of Australia

Family Law Amendment Act 2023

No. 87, 2023

An Act to amend legislation relating to family law, and for related purposes

[Assented to 6 November 2023]

The Parliament of Australia enacts:

This Act is the Family Law Amendment Act 2023.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	6 November 2023
2. Schedule 1	A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
3. Schedule 2, Part 1, Division 1	A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
4. Schedule 2, Part 1, Division 2	The later of: (a) immediately after the commencement of the provisions covered by table item 2; and (b) immediately after the commencement of the provisions covered by table item 3.
5. Schedule 2, Part 1, Division 3	At the same time as the provisions covered by table item 3.
6. Schedule 2, Part 2, Division 1	The day after this Act receives the Royal Assent.	7 November 2023
7. Schedule 2, Part 2, Division 2	Immediately after the commencement of the provisions covered by table item 3.
8. Schedule 3	Immediately after the commencement of the provisions covered by table item 2.
9. Schedule 4	A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
10. Schedule 5	A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
11. Schedule 6	A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
12. Schedule 7	A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.
13. Schedules 8 and 9	The day after this Act receives the Royal Assent.	7 November 2023
14. Schedule 10	The day after this Act receives the Royal Assent.	7 November 2023

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Parenting framework

Part 1—Best interests of children

Family Law Act 1975

1 Paragraph 4(1AB)(b)

Repeal the paragraph, substitute:

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

2 Paragraph 60A(a)

Omit “and the principles underlying it,”.

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

Omit “, principles”.

4 Section 60B

Repeal the section, substitute:

60B Objects of Part

The objects of this Part are:

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

Note: The text of the Convention is set out in Australian Treaty Series 1991 No. 4 ([1991] ATS 4). In 2023, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

5 Section 60C (table item 1, column headed “Divisions and coverage”)

Omit “principles underlying it, and”.

6 Section 60CC

Repeal the section, substitute:

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

Determining child’s best interests

(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:

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

(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).

General considerations

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

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

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

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child’s family.

Additional considerations—right to enjoy Aboriginal or Torres Strait Islander culture

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

(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:

(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and

(ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(iii) to develop a positive appreciation of that culture; and

(b) the likely impact any proposed parenting order under this Part will have on that right.

Consent orders

(4) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

7 Subsection 60CD(1)

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

8 Paragraph 60D(1)(b)

Repeal the paragraph, substitute:

(b) encourage the person to act in the child’s best interests by applying the considerations set out in subsections 60CC(2) and (3).

9 Paragraph 68N(b)

Omit “and principles”.

10 Subsection 68P(2C)

Repeal the subsection.

10A After subsection 68P(3)

Insert:

(3A) Paragraph (3)(c) does not require the court to give a copy of the order or injunction to a child if the court is satisfied that it is in the child’s best interests not to receive a copy of the order or injunction.

11 Paragraph 68S(2)(a)

Omit “60CC(3)(a) (about taking into account a child’s views etc.)”, substitute “60CC(2)(b) (about taking into account a child’s views)”.

12 Application provision

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

Part 2—Parental responsibility

Family Law Act 1975

13 Subsection 61C(1) (note 2)

Omit “See section 61DA for the presumption that the court does apply when making a parenting order.”.

14 After section 61C

Insert:

61CA Consultation between parents on major long‑term issues

If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:

(a) to consult each other about major long‑term issues in relation to the child; and

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

15 At the end of section 61D

Add:

(3) A parenting order that deals with the allocation of responsibility for making decisions about major long‑term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision‑making in relation to all or specified major long‑term issues.

16 Sections 61DA and 61DB

Repeal the sections, substitute:

61DAA Effect of parenting order that provides for joint decision‑making about major long‑term issues

(1) If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:

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

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

(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

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

(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

(a) has parental responsibility for the child; or

(b) shares parental responsibility for the child with another person;

about decisions that are made in relation to the child during that time on issues that are not major long‑term issues.

Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.

(2) Subsection (1) applies subject to any provision to the contrary made by a parenting order.

17 At the end of section 61F

Add:

Note: The expression Aboriginal or Torres Strait Islander culture is defined in subsection 4(1).

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

Add:

Note: For the definition of major long‑term issues, see subsection 4(1).

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

Repeal the paragraphs.

20 Subsections 63DA(3) and (4)

Repeal the subsections.

21 At the end of subsection 64B(3)

Add:

Note 1: See also subsection 61D(3) and section 61DAA in relation to parenting orders dealing with allocation of responsibility for making decisions about major long‑term issues.

Note 2: For the definition of major long‑term issues, see subsection 4(1).

22 Subsection 65D(1)

Omit “sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and”, substitute “section”.

23 Subsection 65D(2)

Omit “61DA (presumption of equal shared parental responsibility when making parenting orders) and”.

24 Sections 65DAA, 65DAC and 65DAE

Repeal the sections.

25 Application provision

(1) Subject to subitem (2), the amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

(2) Section 61CA of the Family Law Act 1975, as inserted by this Part, applies from the day this item commences.

Part 3—Child‑related proceedings

Family Law Act 1975

26 After section 65D

Insert:

65DAAA Reconsideration of final parenting orders

(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:

(a) the reasons for the final parenting order and the material on which it was based;

(b) whether there is any material available that was not available to the court that made the final parenting order;

(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.

(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.

27 Application provision

The amendment made by this Part applies in relation to final parenting orders whether the orders came into force before, or come into force on or after, the day this item commences.

Schedule 2—Enforcement of child‑related orders

Part 1—Enforcement of child‑related orders

Division 1—Main amendments

Child Support (Assessment) Act 1989

1 Subsection 100(2)

Omit “Division 13A of Part VII (Consequences of failure to comply with orders, and other obligations, that affect children)”, substitute “Division 13A of Part VII (Orders in proceedings relating to contraventions of child‑related orders)”.

Family Law Act 1975

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

Omit “in Subdivision D of Division 6 of Part VII”, substitute “in Subdivision B of Division 14 of Part VII”.

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

Repeal the definition.

4 Subsection 4(1)

Insert:

child‑related order: see subsection 70NBA(2).

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

Repeal the definition.

6 Subsection 4(1)

Insert:

contravene a child‑related order: see section 70NAC.

7 Subsection 4(1)

Repeal the following definitions:

(a) definition of contravened;

(b) definition of order under this Act affecting children;

8 Subsection 4(1)

Insert:

reasonable excuse for contravening a child‑related order has a meaning affected by section 70NAD.

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

Repeal the definition.

10 At the end of Part II

Add:

Division 5—Post‑separation parenting programs

10PA Admissibility of communications in post‑separation parenting programs

(1) Evidence of anything said, or of any admission made, by a person attending a post‑separation parenting program is not admissible:

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

(b) in any proceedings before a person authorised by a law of the Commonwealth, of a State or of a Territory, or by the consent of the parties, to hear evidence.

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

(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse;

(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

Note: A court may make an order directing a person to attend a post‑separation parenting program under subsection 65LA(1) or 70NBD(1).

11 Section 60C (table item 6)

Repeal the item, substitute:

Division 6—Parenting orders other than child maintenance orders

applying for and making parenting orders (other than child maintenance orders) after attending, if necessary, family dispute resolution (see section 60I)
measures to promote the exercise of parental responsibility
obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia

12 Section 60C (table item 13A)

Repeal the item, substitute:

13A	Division 13A—Orders in proceedings relating to contraventions of child‑related orders orders that the court may make in proceedings where it is alleged that a person has contravened a child‑related order (including parenting orders)

13 Section 60C (table item 14)

Repeal the item, substitute:

14	Division 14—Miscellaneous dealing with people who have been arrested and miscellaneous matters relating to children

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

Omit “Subdivisions C, D and E”, substitute “Subdivision E”.

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

Repeal the paragraphs.

16 Subsection 65D(3)

Repeal the subsection (not including the notes).

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

Omit “or for the proceedings under Subdivision E of Division 13A of Part VII, or both,”.

18 Subdivisions C and D of Division 6 of Part VII

Repeal the Subdivisions.

19 Section 67Q (note 1)

Omit “Subdivision D of Division 6”, substitute “Subdivision B of Part 14”.

20 Subsections 69ZH(2) and (4)

Omit “Subdivisions C, D and E”, substitute “Subdivision E”.

21 Division 13A of Part VII

Repeal the Division, substitute:

Division 13A—Orders in proceedings relating to contraventions of child‑related orders

Subdivision A—Preliminary

70NAA Simplified outline

This Division sets out orders that a court may make if an issue arises in the proceedings about whether a person (the respondent) has contravened a child‑related order.

The court may, at any stage of proceedings (and without having to make a finding about the contravention), make any of the following orders:

(a) a make‑up time parenting order;

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

(c) an order requiring the respondent and any other party to the proceedings to attend a post‑separation parenting program.

If the court finds on the balance of probabilities that the respondent contravened the child‑related order without having a reasonable excuse, the court may make any of the following orders (having regard to the seriousness of the contravention):

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

(b) an order imposing a fine on the respondent for failing to enter into a bond.

If the court is satisfied beyond reasonable doubt that the respondent contravened the child‑related order without having a reasonable excuse, the court may also make any of the following orders (having regard to the seriousness of the contravention):

(a) an order imposing a fine on the respondent;

(b) an order imposing a sentence of imprisonment on the respondent.

This Division also sets out ancillary matters relating to terms of imprisonment, the enforcement of bonds and other miscellaneous matters.

Note: A court may also award costs against a party under section 117 if satisfied there are circumstances that justify it doing so.

70NAB Objects

The principal objects of this Division are to meet the best interests of children to whom child‑related orders relate by:

(a) supporting compliance with child‑related orders; and

(b) resolving difficulties associated with child‑related orders that are parenting orders which have contributed to non‑compliance with such orders (including by varying or making further orders); and

(d) upholding the authority of the court by enforcing compliance with child‑related orders where the court considers this necessary and appropriate; and

(e) providing for sanctions for a person who contravenes a child‑related order without reasonable excuse.

70NAC Meaning of contravene a child‑related order

(1) A person contravenes a child‑related order only if:

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

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

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

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

(i) the person intentionally prevents compliance with the order by a person to whom the order applies; or

(ii) the person aids or abets a contravention of the order by a person to whom the order applies.

Note: A child‑related order that is a parenting order may be subject to a later parenting plan: see section 64D. This means that conduct that would otherwise contravene such an order may not constitute a contravention because of the terms of a later parenting plan.

(2) Without limiting subsection (1), the following table sets out circumstances in which a person contravenes a child‑related order.

Circumstances in which a person contravenes a child‑related order
Item	The order provides for …	and the person intentionally …
1	with whom a child is to live	either: (a) contrary to the order, removes the child from the care of another person; or (b) contrary to the order, refuses or fails to deliver or return the child to another person.
2	with whom a child is to spend time	hinders or prevents another person from spending time with the child in accordance with the order.
3	with whom a child is to communicate	hinders or prevents another person from communicating with the child in accordance with the order.
4	the allocation of parental responsibility for a child to another person	hinders or prevents the other person from discharging that responsibility in accordance with the order.
5	the maintenance of a child	either: (a) contrary to the order, fails to pay maintenance; or (b) prevents another person paying maintenance in accordance with the order.

70NAD Meaning of reasonable excuse for contravening a child‑related order

Where person did not understand obligations

(1) A person has a reasonable excuse for contravening a child‑related order if:

(a) the person contravened the order because at the time of the contravention the person did not understand the obligations imposed by the order; and

(b) the court considers that the person ought to be excused in respect of the contravention.

(2) If the court decides that a person has a reasonable excuse under subsection (1) for contravening a child‑related order, the court must explain to the person, in language likely to be readily understood by the person:

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

(b) the consequences that may follow if the person contravenes the order again.

Protection of health or safety of a person

(3) A person has a reasonable excuse for contravening a child‑related order if:

(a) the person contravened the order because the person reasonably believed that the person’s actions constituting the contravention were necessary to protect the health or safety of the person, a child or any other person; and

(b) the period of the contravention was not longer than necessary to protect the health or safety of the person, child or other person.

Section does not limit circumstances of a reasonable excuse

(4) This section does not limit the circumstances in which a person may have a reasonable excuse for contravening a child‑related order.

70NADA Burden of proof in relation to reasonable excuse

A person who claims to have a reasonable excuse for contravening a child‑related order has the legal burden of proving the excuse.

70NAE Standard of proof

The standard of proof to be applied in determining matters in proceedings under this Division (other than paragraph 70NBF(1)(d)) is proof on the balance of probabilities.

Note: The court may make an order under paragraph 70NBF(1)(d) in relation to a person only if the court is satisfied beyond reasonable doubt that the person contravened the child‑related order.

Subdivision B—Orders relating to contraventions of child‑related orders

70NBA Court may make orders in proceedings relating to contravention of child‑related orders

(1) This Subdivision sets out orders that a court exercising jurisdiction in proceedings under this Act may make if:

(a) an issue arises in the proceedings about whether a person (the respondent) has contravened a child‑related order; and

(b) a party to the proceedings makes an application for an order under this Subdivision in relation to the issue.

Note: The court does not need to find that the respondent contravened a child‑related order to make certain orders under this Subdivision. For example, the court may make the following orders at any stage of the proceedings:

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

(b) an order varying or suspending a parenting order under section 70NBC;

(c) an order requiring the respondent and any other party to the proceedings to attend a post‑separation parenting program under section 70NBD.

(2) Each of the following is a child‑related order:

(a) a parenting order;

(b) an injunction granted by the court:

(i) under section 68B; or

(ii) under section 114 in so far as the injunction is for the protection of a child;

(i) under a parenting order; or

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

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

(d) an undertaking given to, and accepted by, the court that relates to, or to the making of, an order, injunction or bond referred to in any of paragraphs (a) to (c);

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

(i) relates to, or to the making of, an order, injunction or bond referred to in any of paragraphs (a) to (c); and

(ii) is issued to a party to the proceedings for the order, injunction or bond, as the case may be.

70NBB Make‑up time parenting orders

(1) If a child does not spend time with a person as required by a child‑related order as a result of the alleged contravention mentioned in subsection 70NBA(1), then, in lieu of that time, the court may make a parenting order (a make‑up time parenting order) that the child spend time with the person.

Note 1: Parenting orders are made under Division 6.

Note 2: The court may also make an order requiring the respondent to compensate another person for reasonable expenses incurred as a result of a child not spending time with that other person: see paragraph 70NBF(1)(c).

(2) The court may make a make‑up time parenting order at any stage of the proceedings.

(3) To avoid doubt, the amount of time specified in the make‑up time parenting order may be different from the amount of time that the child missed with the person as a result of the alleged contravention.

70NBC Variation and suspension of child‑related orders that are parenting orders

Variation of child‑related orders that are parenting orders

(1) The court may, at any stage of the proceedings, vary a child‑related order that is a parenting order.

(2) Subsection (1) does not limit the circumstances in which a court having jurisdiction under this Act may vary a child‑related order that is a parenting order.

Suspension of child‑related orders that are parenting orders

(3) The court may, at any stage of the proceedings, suspend for a specified period of time the operation of, or part of the operation of, a child‑related order that is a parenting order.

70NBD Post‑separation parenting programs

Post‑separation parenting program orders

(1) The court may, at any stage of the proceedings, make an order requiring the respondent and, if appropriate, one or more other parties to the proceedings, to attend a post‑separation parenting program or other specified program.

Note 1: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the party’s needs (see section 11E).

Note 2: Things said, or admission made by, a person in a post‑separation parenting program are generally not admissible in a court: see section 10PA.

Duty of principal executive officer to notify program provider

(2) The principal executive officer of the court must advise the provider of the program of the making of an order under subsection (1) as soon as reasonably practicable after the order is made.

Unsuitability to attend program or failure to attend program

(3) The provider of the program must inform the court, and any other party to the proceedings, if:

(a) the provider considers that a person ordered to attend the program is unsuitable to attend the program; or

(b) a person ordered to attend the program fails to attend the entire program, or any part of it.

(4) The court may make any order (other than an order under paragraph 70NBF(1)(d)) that it considers appropriate if a person ordered to attend a program is considered as being unsuitable to attend the program, or fails to attend any part of the program.

(5) If the court has found that the respondent has contravened the child‑related order without having a reasonable excuse, then the court must take into account the seriousness of that contravention when making an order under subsection (4).

70NBF Orders where contravention established without reasonable excuse

Orders for contraventions without reasonable excuse

(1) If the court finds that the respondent has contravened a child‑related order without having a reasonable excuse, the court may make any of the following orders:

(a) an order requiring the respondent to enter into a bond in accordance with section 70NCA;

(b) if an order is made under paragraph (a), and the respondent fails, without having a reasonable excuse, to enter into the bond—an order imposing a fine not exceeding 10 penalty units on the respondent;

(c) where the contravention resulted in a child not spending time with, or living with, a person (the affected person) for a period—an order requiring the respondent to compensate the affected person for some or all of any expenses the affected person reasonably incurred as a result of the contravention;

(d) where the court is satisfied beyond reasonable doubt that the respondent contravened the order:

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

(ii) an order imposing a term of imprisonment.

Note: For subparagraph (d)(ii), see subsection (4), subsection 70NCC(2) and section 70NCE for limits on how and when the court may impose a term of imprisonment on the respondent.

Matters to be considered by the court

(2) In making an order mentioned in subsection (1), the court must have regard to:

(a) the likely effects of making the order on any child, or any other person; and

(b) the seriousness of the contravention.

(3) Without limiting the matters the court may take into account, the following matters must be taken into account by the court when having regard to the seriousness of the contravention:

(a) whether a court has previously found that the respondent has contravened a child‑related order without having a reasonable excuse;

(b) whether the respondent behaved in a way that showed a serious disregard of the respondent’s obligations under the child‑related order mentioned in subsection (1);

(c) the behaviour of any person with whom the child is to live or spend time under the child‑related order mentioned in subsection (1).

(4) The court may sentence the respondent to imprisonment under subparagraph (1)(d)(ii) only if the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention in any other way under subsection (1).

Subdivision C—Further provisions relating to bonds and imprisonment

70NCA Matters relating to bonds

(1) This section sets out requirements relating to bonds that the court may require the respondent to enter into under paragraph 70NBF(1)(a).

Matters dealt with in bonds

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

(3) A bond may be:

(a) with or without surety; and

(b) with or without security.

(4) The conditions that may be imposed on the respondent by a bond include (without limitation) conditions that require the respondent:

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

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

(d) to attend family dispute resolution; or

(e) to be of good behaviour.

Duty to explain bond

(5) Before requiring the respondent to enter into a bond, the court must explain to the respondent, in language likely to be readily understood by the respondent:

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

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

(i) fails to enter into the bond; or

(ii) having entered into the bond—fails to act in accordance with the bond.

70NCB Procedure for enforcing bonds

(1) This section applies if:

(a) the court finds that the respondent has contravened a child‑related order without having a reasonable excuse; and

(b) the respondent has entered into a bond in accordance with an order made under paragraph 70NBF(1)(a); and

(2) The court may:

(a) without prejudice to the continuance of the bond, impose a fine not exceeding 10 penalty units on the respondent; or

(b) revoke the bond and deal with the respondent in any manner in which the respondent could have been dealt with for the contravention of the child‑related order if:

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

(ii) the respondent was before the court under this Division in respect of the contravention of the child‑related order.

(3) Without limiting the matters the court may take into account, the court must take into account the following matters when acting under subsection (2):

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

(b) anything done pursuant to the bond;

70NCC Matters relating to imprisonment

(1) This section applies if a sentence of imprisonment is imposed on the respondent under subparagraph 70NBF(1)(d)(ii).

Limits on sentences of imprisonment

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

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

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

(i) the time when the respondent complies with the child‑related order concerned; or

(ii) the time when the respondent has been imprisoned under the sentence for 12 months, or such lesser period as is specified by the court ordering the sentence.

Good behaviour bonds

(3) When sentencing the respondent to imprisonment, the court may direct that, after serving a specified part of the term of imprisonment, the respondent be released upon the respondent entering into a bond (with or without surety or security) that the respondent will be of good behaviour for a specified period of up to 2 years.

Statement of reasons

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

(a) state the reasons why it is satisfied as mentioned in subsection 70NBF(4); and

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

Note: Subsection 70NBF(4) provides that the respondent may be sentenced to imprisonment only if the court is satisfied that it would not be appropriate for the court to deal with the contravention in any other way under subsection 70NBF(1).

(5) The failure of the court to comply with subsection (4) does not invalidate a sentence.

70NCD Powers of court in relation to imprisoned person

Release of imprisoned respondent

(1) The court that has sentenced the respondent to imprisonment may order the release of the respondent if it is satisfied that the respondent will, if released, comply with the court’s orders.

Suspension of sentence

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

(a) suspend the sentence upon the terms and conditions determined by the court; and

(b) terminate such a suspension.

70NCE Rules relating to child maintenance orders and child support

Sentences of imprisonment for contravention of child maintenance orders

(1) The court must not make an order imposing a sentence of imprisonment on the respondent under subparagraph 70NBF(1)(d)(ii), in respect of a contravention of a child maintenance order made under this Act, unless the court is satisfied that the contravention was intentional or fraudulent.

(2) To avoid doubt, the serving by the respondent of a period of imprisonment imposed under subparagraph 70NBF(1)(d)(ii) for failure to make a payment under a child maintenance order does not affect the respondent’s liability to make the payment.

Court must not imprison respondent for contravention of child support assessments etc.

(3) The court must not make an order imposing a sentence of imprisonment on the respondent under subparagraph 70NBF(1)(d)(ii) in respect of:

(a) a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989; or

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

(c) a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).

Subdivision D—Miscellaneous

70NDA Court may issue warrant for arrest of alleged offender

(1) The court may issue a warrant authorising a person to whom it is addressed to arrest the respondent if:

(a) a child‑related order that is a parenting order provides that a child is to live with, spend time with or communicate with a person (the complainant); and

(b) the court is satisfied that there are reasonable grounds for believing that the respondent has contravened the order on any of the grounds mentioned in any of items 1 to 3 of the table in subsection 70NAC(2); and

(c) the issue of the warrant is necessary to ensure that the respondent will attend before the court to be dealt with under this Division for the alleged contravention.

(2) A warrant stops being in force on the date specified in the warrant (which must be no more than 6 months after the issue of the warrant).

70NDB Relationship between Division and prosecutions for offences under other laws

(1) This section applies if:

(a) an act or omission by the respondent:

(i) constitutes an alleged contravention of a child‑related order; and

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

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

(2) The court must:

(a) dismiss proceedings in relation to the alleged contravention of the child‑related order; or

(b) adjourn those proceedings until the prosecution has been completed.

(3) Nothing in this Division renders a person liable to be punished twice in respect of the same act or omission.

70NDC Division does not limit operation of section 105

Nothing in this Division limits the operation of section 105 (which deals with enforcement generally).

22 Division 14 of Part VII (after the heading)

Insert:

Subdivision A—What this Division does

23 Section 70P

Omit “deals with”, substitute “is about dealing with people who have been arrested and”.

24 After section 70P

Insert:

Subdivision B—Dealing with people who have been arrested

70PA Situation to which Subdivision applies

This Subdivision applies if a person:

(a) is arrested under a warrant issued under subsection 70NDA(1) (warrants for arrest of persons alleged to have contravened a child‑related order); or

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

70PB Arrested person to be brought before a court

(1) The arresting person must:

(a) ensure that the alleged offender is brought before a court having jurisdiction under this Part before the end of the holding period applicable under subsection (4); and

(b) take all reasonable steps to ensure that, before the alleged offender is brought before a court, the person who applied for the warrant or recovery order is aware:

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

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

(2) The alleged offender must not be released before the end of the holding period except under an order of a court having jurisdiction under this Part.

(3) This section does not authorise the holding in custody of the alleged offender after the end of the holding period.

(4) The holding period is:

(a) if a Saturday, Sunday or public holiday starts within 24 hours after the arrest of the alleged offender—the longer of the following periods:

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

(ii) the period starting with the arrest and ending at the end of the next day after the day of the arrest that is not a Saturday, Sunday or public holiday; or

(b) in any other case—the period starting with the arrest and ending 24 hours later.

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

(1) This section applies if:

(a) the alleged offender is brought before a court under section 70PB; and

(b) there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

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

70PD Obligation of court—where no application before it, but application before another court, to deal with contravention

(1) This section applies if:

(a) the alleged offender is brought before a court under section 70PB; and

(b) there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

(c) the court is aware that there is an application before another court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

(2) The court must, without delay:

(a) order that the alleged offender is to be released from custody on entering into a recognisance (with or without surety or security) that the alleged offender will attend before the other court on a date, at a time and at a place specified by the court; or

(b) order the arresting person to arrange for the alleged offender to be brought before the other court on such date and at such time as the court specifies, being a date and time such that the alleged offender is to be brought before the other court as soon as practicable, and in any event not more than 72 hours, after the order is made.

(3) If a court makes an order under paragraph (2)(b) for the alleged offender to be brought before another court:

(a) subject to paragraph (c), the alleged offender may be kept in custody until brought before the other court; and

(b) if the alleged offender is brought before the other court as required by the order, the other court must, without delay, proceed to hear and determine the application mentioned in paragraph (1)(c); and

(c) if the alleged offender is not brought before the other court as required by the order, the alleged offender must be released without delay.

70PE Obligation of court—where no application before any court to deal with contravention

(1) This section applies if:

(a) the alleged offender is brought before a court under section 70PB; and

(b) there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and

(c) so far as the court is aware, there is no application, or no longer any application, before any other court for the alleged offender to be dealt with under Division 13A for the alleged contravention.

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

70PF Applications heard as required by subsection 70PC(2) or paragraph 70PD(3)(b)

(1) If a court hearing an application as required by subsection 70PC(2) or paragraph 70PD(3)(b) adjourns the hearing, the court must:

(a) order the alleged offender to be kept in such custody as the court considers appropriate during the adjournment; or

(b) order that the alleged offender is to be released from custody, either on entering into a recognisance (with or without surety or security) that the alleged offender will attend before the court on the resumption of the hearing or otherwise.

(2) This section does not authorise the holding in custody of the alleged offender during an adjournment of proceedings that:

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

(b) continues for more than 24 hours.

Subdivision C—Other matters

25 Paragraph 109A(1)(a)

Repeal the paragraph, substitute:

(a) a child‑related order; or

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

Omit “an order under this Act affecting children”, substitute “a child‑related order”.

27 Subsection 117(1)

Omit “subsections”, substitute “subsection”.

28 Subsection 117(1)

Omit “and 70NFB(1) and sections”, substitute “and sections”.

29 Subsection 117(1)

Omit “shall bear his or her”, substitute “must bear the party’s”.

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

Omit “70NEB or 70NEG”, substitute “70NBB, 70NBD or 70NBF”.

Federal Circuit and Family Court of Australia Act 2021

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

Repeal the subparagraph, substitute:

(iv) subsection 70NBD(1);

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

Omit “70NEB or 70NEG”, substitute “70NBB, 70NBD or 70NBF”.

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

Repeal the subparagraph, substitute:

(iv) subsection 70NBD(1);

Division 2—Amendments contingent on the commencement of Part 3 of Schedule 1

Family Law Act 1975

34 At the end of subsection 70NBC(1)

Add:

Note: The court must not reconsider a final parenting order (other than a child maintenance order) unless the court has considered certain matters and is satisfied of certain matters: see section 65DAAA.

35 At the end of subsection 70NBC(3)

Add:

Division 3—Application and transitional rules

36 Application and transitional rules

(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Part.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act or the Family Law Act 1975;

(e) directly amend the text of this Act or the Family Law Act 1975.

Part 2—Delegations

Division 1—Main amendment

Federal Circuit and Family Court of Australia Act 2021

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

Insert:

(ba) a further parenting order made under paragraph 70NDB(1)(c), 70NEB(1)(b) or 70NFB(2)(c) of the Family Law Act 1975; or

Division 2—Amendment relating to amendments made by Part 1 of this Schedule

Federal Circuit and Family Court of Australia Act 2021

38 Subsection 7(1) (paragraph (ba) of the definition of excluded child order)

Repeal the paragraph, substitute:

(ba) an order made under section 70NBB (make‑up time parenting orders) of the Family Law Act 1975; or

Schedule 3—Definition of member of the family

Family Law Act 1975

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

Omit “child; and”, substitute “child; or”.

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

Add:

(vii) for an Aboriginal child or Torres Strait Islander child—a person who, in accordance with the child’s Aboriginal or Torres Strait Islander culture (including but not limited to any kinship systems of that culture), is related to the child; and

3 Subsection 4(1) (paragraph (b) of the definition of relative)

Repeal the paragraph, substitute:

(b) in paragraph (1AB)(e)—has the meaning given by subsection (1AC); and

4 Paragraph 4(1AB)(e)

Repeal the paragraph, substitute:

(e) the first person is or has been a relative of the second person within the meaning of subsection (1AC); or

(ea) except for the purposes of sections 60CF, 60CH and 60CI—the first person is or has been a relative of the second person within the meaning of subsection (1AD); or

5 Subsection 4(1AC)

Omit “subsection (1AB)”, substitute “paragraph (1AB)(e)”.

6 After subsection 4(1AC)

Insert:

(1AD) For the purposes of paragraph (1AB)(ea), if a person is related to an Aboriginal or Torres Strait Islander child in accordance with the child’s Aboriginal or Torres Strait Islander culture (including but not limited to any kinship systems of that culture), the person is a relative of the child.

Note: This subsection adds to the persons who are relatives of a person within the meaning of subsection (1AC). The difference is that the addition in this subsection does not apply for the purposes of sections 60CF, 60CH or 60CI, which relate to informing courts of certain matters (see paragraph (1AB)(ea)).

7 Application provision

So far as the amendments of the Family Law Act 1975 made by this Schedule apply in relation to proceedings, they apply in relation to:

(a) proceedings instituted on or after the day this item commences; and

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

Schedule 4—Independent children’s lawyers and Hague Convention proceedings

Part 1—Requirement to meet with the child

Family Law Act 1975

1 Subsections 68L(5) and (6)

Repeal the subsections.

2 After subsection 68LA(5)

Insert:

Requirement to meet with the child and give the child the opportunity to express their views

(5A) Subject to subsection (5B), the independent children’s lawyer must perform the following duties (not necessarily at the same time):

(a) meet with the child;

(b) provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate.

Note: A person cannot require a child to express the child’s views in relation to any matter (see section 60CE).

(5AA) The independent children’s lawyer has discretion in relation to the following matters (subject to any order or direction of the court with respect to the matter, for example under paragraph 68L(2)(b) or paragraph (5D)(b) of this section):

(a) when, how often and how meetings with the child take place;

(b) when, how often and how the child is provided with an opportunity to express views.

(5B) The independent children’s lawyer is not required to perform a duty if:

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

(b) the child does not want to meet with the independent children’s lawyer, or express their views (as the case requires); or

(5C) Without limiting paragraph (5B)(c), exceptional circumstances for the purposes of that paragraph include that performing the duty, would:

(a) expose the child to a risk of physical or psychological harm that cannot be safely managed; or

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

(5D) If the independent children’s lawyer proposes not to perform a duty because of paragraph (5B)(c), the court must do the following before making final orders:

(a) determine whether it is satisfied that exceptional circumstances exist that justify not performing the duty;

(b) if the court determines that those circumstances do not exist—make an order requiring the independent children’s lawyer to meet with the child or provide the child with an opportunity to express their views (as the case requires).

Note: The court may also make such other orders it considers necessary to secure the independent representation of the child’s interests (see paragraph 68L(2)(b)).

3 Application provision

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

Part 2—Convention on the Civil Aspects of International Child Abduction

Family Law Act 1975

4 Subsection 68L(1)

Repeal the subsection, substitute:

(1) This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration. This includes any such proceedings arising under regulations made for the purposes of section 111B.

Note: Section 111B is about the Convention on the Civil Aspects of International Child Abduction.

5 Subsection 68L(3)

Repeal the subsection.

6 Application provision for items 4 and 5

The amendments of the Family Law Act 1975 made by items 4 and 5 of this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

7 Subsection 111B(1B)

Repeal the subsection.

Schedule 5—Case management and procedure

Part 1—Harmful proceedings orders and co‑location of sections 45A and 102Q

Family Law Act 1975

1 Section 45A

Repeal the section.

2 Part XIB (heading)

Repeal the heading, substitute:

Part XIB—Decrees and orders relating to unmeritorious, harmful, and vexatious proceedings

3 Before section 102Q

Insert:

102QAA Simplified outline

This Part sets out the court’s powers to deal with proceedings that are unmeritorious, harmful, or vexatious.

Unmeritorious proceedings are proceedings that are without reasonable prospect of success, frivolous, vexatious, or an abuse of process.

Harmful proceedings are proceedings that may result in harm to another party, or to a child involved in the proceedings. The kinds of harms that might provide grounds for such an order could include severe stress (that could arise, for example, from repeated filings of applications against the respondent).

Vexatious proceedings include proceedings that are an abuse of process, proceedings instituted without reasonable grounds, and proceedings instituted or conducted for a wrongful purpose.

4 Subsection 102Q(1)

Insert:

harmful proceedings order means an order made under subsection 102QAC(1).

5 Section 102QA

Repeal the section, substitute:

102QA Interactions between provisions and with other powers of court

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

(a) each other; or

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

6 After section 102QA

Insert:

Division 1A—Summary decrees

102QAB Summary decrees

No reasonable prospect of successfully defending proceedings

(1) The court may make a decree for one party (the first party) against another in relation to the whole or any part of proceedings if:

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

(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.

No reasonable prospect of successfully prosecuting proceedings

(2) The court may make a decree for one party (the first party) against another in relation to the whole or any part of a proceedings if:

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

(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

When there is no reasonable prospect of success

(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:

(a) hopeless; or

(b) bound to fail;

to have no reasonable prospect of success.

Proceedings that are frivolous, vexatious or an abuse of process

(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or the part is frivolous, vexatious or an abuse of process.

(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.

Costs

(6) If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.

Action by court on its own initiative or on application

(7) The court may take action under this section on its own initiative or on application by a party to the proceedings.

Division 1B—Harmful proceedings orders

Subdivision A—Making harmful proceedings orders

102QAC Making harmful proceedings orders

Making harmful proceedings orders

(1) A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:

(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or

(b) in the case of child‑related proceedings (within the meaning of Part VII)—the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.

Note: Proceedings includes cross‑proceedings and incidental proceedings (see subsection 4(1)).

(2) For the purposes of subsection (1), harm may include, but is not limited to, the following:

(a) psychological harm or oppression;

(b) major mental distress;

(d) financial harm.

(3) In determining whether to make an order under subsection (1), the court may have regard to:

(a) the history of the proceedings under this Act between the first party and the other party; and

(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and

(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).

(4) The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.

(5) The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

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

Order about notifying other party in relation to application for leave etc.

(7) If the court makes an order under subsection (1), the court must also make an order as to whether the court is to notify the other party, in the event that the first party makes an application under section 102QAE for leave to institute proceedings against the other party, of either or both of the following:

(a) that the application has been made;

(b) if the application is dismissed—that the application has been dismissed.

(8) The court must have regard to the wishes of the other party in making an order under subsection (7).

Subdivision B—Consequences of harmful proceedings orders

102QAD Proceedings in contravention of harmful proceedings order

(1) If a person is subject to a harmful proceedings order prohibiting the person from instituting proceedings under this Act in a court having jurisdiction under this Act:

(a) the person must not institute proceedings in the court without the leave of the court under section 102QAG; and

(b) another person must not, acting in concert with the person, institute proceedings in the court without the leave of the court under section 102QAG.

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

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

(a) an order declaring proceedings are proceedings to which subsection (2) applies; and

(b) any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.

(4) The court may make an order under subsection (3) on its own initiative or on the application of a person a party to the proceedings.

102QAE Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(a) subject to a harmful proceedings order prohibiting the person from instituting further proceedings under this Act in a court having jurisdiction under this Act; or

(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.

Note: The court may be required to give notice that the application has been made (see subsection 102QAC(7)).

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

(a) lists all the occasions on which the applicant has applied for leave under this section; and

(b) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under section 102QAG. If the order is made, the applicant must serve the copy in accordance with the order.

102QAF Dismissing application for leave

(1) The court may make an order dismissing an application under section 102QAE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QAE(3).

Note: The court may be required to give notice that the application has been dismissed (see subsection 102QAC(7)).

(2) The court must make an order dismissing an application under section 102QAE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.

Note: The court may be required to give notice that the application has been dismissed (see subsection 102QAC(7)).

(3) The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).

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

102QAG Granting application for leave

(1) The court may make an order granting the application for leave only if it is satisfied that the proceedings are not frivolous, vexatious or an abuse of process, and have reasonable prospects of success.

(2) An order under subsection (1) may be made subject to the conditions the court considers appropriate.

7 Division 2 of Part XIB (after the heading)

Insert:

Subdivision A—Making vexatious proceedings orders

8 Division 3 of Part XIB (heading)

Repeal the heading, substitute:

Subdivision B—Consequences of vexatious proceedings orders

9 Section 102QE (heading)

After “proceedings”, insert “by person subject to vexatious proceedings order”.

10 Sections 102QF and 102QG (heading)

After “leave”, insert “by person subject to vexatious proceedings order”.

11 Subsection 117(1)

Omit “45A(6)”, substitute “102QAB(6)”.

Federal Circuit and Family Court of Australia Act 2021

12 Subsection 143(5) (note)

Omit “45A”, substitute “102QAB”.

13 Savings provision

To avoid doubt, the repeal of section 45A of the Family Law Act 1975 made by this Schedule does not affect any decree made or action taken under that section, as in force before the commencement of this item.

14 Application provision

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences.

Part 2—Overarching purpose of the family law practice and procedure provisions

Family Law Act 1975

15 Subsection 4(1)

Insert:

family law practice and procedure provisions has the meaning given by subsection 95(4).

16 Before Division 1 of Part XI

Insert:

Division 1A—Overarching purpose of the family law practice and procedure provisions

95 Overarching purpose of the family law practice and procedure provisions

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

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

(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration—in a way that promotes the best interests of the child; and

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

Note: For family law practice and procedure provisions, see subsection (4).

(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:

(a) the just determination of all such proceedings;

(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;

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

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The family law practice and procedure provisions are the following, so far as they apply in relation to proceedings under this Act:

(a) the applicable Rules of Court;

(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia or any other court.

96 Duty to act consistently with the overarching purpose

Duty of parties

(1) The parties to proceedings under this Act must conduct the proceedings (including negotiations for settlement of the dispute to which the proceedings relate) in a way that is consistent with the overarching purpose of the family law practice and procedure provisions.

Duty of lawyers

(2) A party’s lawyer must, in the conduct of proceedings under this Act on the party’s behalf (including in the conduct of negotiations for settlement of the dispute to which the proceedings relate):

(a) take account of the duty imposed on the party by subsection (1); and

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

Estimate of costs

(3) In proceedings under this Act a court may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:

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

(b) the likely amount of costs that the party will have to pay in connection with the proceedings or part of the proceedings (including the costs that the lawyer will charge to the party).

Costs orders

(4) In exercising the discretion to award costs in proceedings under this Act, a court must take account of any failure to comply with the duty imposed by subsection (1) or (2).

(5) Without limiting the exercise of that discretion, a court may order a party’s lawyer to bear costs personally.

(6) If a court orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.

17 At the end of subsection 117(2)

Add:

Note 3: See also subsections 96(4) to (6) of this Act.

18 Application provision

The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this item commences;

(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.

Federal Circuit and Family Court of Australia Act 2021

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

Repeal the definition, substitute:

civil practice and procedure provisions:

(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—has the meaning given by subsection 67(4); and

(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—has the meaning given by subsection 190(4).

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

Repeal the definition.

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

Omit “family law practice and procedure provisions”, substitute “civil practice and procedure provisions”.

22 Section 67 (heading)

Omit “family law practice and procedure provisions”, substitute “civil practice and procedure provisions”.

23 Subsection 67(1)

Omit “family law practice and procedure provisions”, substitute “civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1),”.

24 Subsection 67(1) (note 1)

Repeal the note, substitute:

Note 1: For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), see subsection (4).

25 Subsection 67(3)

Omit “family law practice and procedure provisions”, substitute “civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1),”.

26 Subsection 67(4)

Omit “The family law practice and procedure provisions are the following,”, substitute “The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), are the following,”.

27 Subsection 68(3) (note)

Repeal the note.

28 After section 68

Insert:

68A Proceedings under the Family Law Act 1975

Sections 67 and 68 do not apply in relation to proceedings under the Family Law Act 1975.

Note: See sections 95 and 96 of the Family Law Act 1975 for the overarching purpose of provisions dealing with the practice and procedure of courts (including the Federal Circuit and Family Court of Australia) in relation to proceedings under that Act.

29 Subsection 190(1)

After “civil practice and procedure provisions”, insert “, in relation to the Federal Circuit and Family Court of Australia (Division 2),”.

30 Subsection 190(1) (note 1)

Repeal the note, substitute:

Note 1: For civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), see subsection (4).

31 Subsection 190(3)

After “civil practice and procedure provisions”, insert “, in relation to the Federal Circuit and Family Court of Australia (Division 2),”.

32 Subsection 190(4)

Omit “are the following,”, substitute “, in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following,”.

33 Subsection 191(3) (note)

Repeal the note.

34 After section 191

Insert:

191A Proceedings under the Family Law Act 1975

Sections 190 and 191 do not apply in relation to proceedings under the Family Law Act 1975.

35 Application provision

The amendments of the Federal Circuit and Family Court of Australia Act 2021 made by this Part apply on and after the day this item commences in relation to:

(a) proceedings instituted before that day that were not finally determined before that commencement; and

(b) proceedings instituted on or after that day.

Schedule 6—Communications of details of family law proceedings

Family Law Act 1975

1 Subsection 4(1)

Insert:

communicate: see subsection 114P(1).

2 Subsection 4(1) (definition of proceedings)

Repeal the definition, substitute:

proceedings:

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

(b) otherwise—means a proceeding in a court, whether between parties or not, and includes cross‑proceedings or an incidental proceeding in the course of or in connection with a proceeding.

3 Subsection 4(1)

Insert:

public: see subsection 114P(2).

4 Section 102PC (heading)

Omit “section 121”, substitute “Part XIVB”.

5 Section 102PC

Omit “section 121”, substitute “Part XIVB”.

6 After Part XIVA

Insert:

Part XIVB—Restriction on communication of accounts and lists of proceedings

114N Simplified outline of this Part

It is an offence to communicate an account of proceedings under this Act to the public, if the account identifies certain people involved in the proceedings.

It is an offence to communicate a list of proceedings that are to be dealt with under this Act to the public, and that are identified by reference to the names of the parties to those proceedings.

A communication is not made to the public if the communication is made to a person with a significant and legitimate interest in the subject matter of the communication that is greater than the interest of members of the public generally.

114P Meaning of terms used in this Part

(1) In this Part:

communicate means communicate by any means, including by any of the following:

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

(b) broadcast by radio or television;

(d) broadcast or publication or other communication by means of the internet.

Example: For the purposes of paragraph (d), online communications and communications using a social media service.

proceedings includes a part of proceedings.

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

public includes a section of the public.

114Q Indictable offence—communication to the public of account of proceedings that identifies parties or others involved in proceedings

(1) A person commits an indictable offence if:

(a) the person communicates to the public an account of proceedings under this Act; and

(b) the account identifies:

(i) a party to the proceedings; or

(ii) a witness in the proceedings; or

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

(iv) a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate.

Penalty: Imprisonment for 1 year.

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

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

(b) otherwise approved by a court.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).

(3) For the purposes of paragraph (1)(b), an account of proceedings is taken to identify a person if the account includes material that is sufficient to identify the person to a member of the public. Examples of such material might include the following:

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

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

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

(e) the relationship or other connection between the person and an identified person or business;

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

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

Note: Paragraphs (a) to (g) are examples of material that might be sufficient to identify a person to a member of the public. The examples are not exhaustive (see section 15AD of the Acts Interpretation Act 1901) and might not be sufficient to identify a person in every circumstance.

114R Indictable offence—communication to the public of list of court etc. proceedings that refers to names of parties

(1) A person commits an indictable offence if the person communicates to the public a list of proceedings, identified by reference to the names of the parties to the proceedings, that are to be dealt with by any of the following under this Act:

(a) a court;

(b) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the applicable Rules of Court;

Penalty: Imprisonment for 1 year.

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

(a) the communication is the publication, by the court, officer or tribunal, of a list of proceedings the court, officer or tribunal is to deal with; or

(b) the communication is:

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

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

Example: For the purposes of paragraph (a), a list of proceedings a court is to deal with that is published by the court at the court’s premises.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).

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

(1) For the purposes of paragraph 114Q(1)(a) and subsection 114R(1), a communication to a person or body is not a communication to the public if:

(a) the person or body has a significant and legitimate interest in the subject matter of the communication; and

(b) that interest is substantially greater than, or different from, the interests of members of the public generally.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).

(2) Without limiting subsection (1), none of the following is a communication to the public:

(a) a private communication between a party to proceedings and one or more persons who are members of the party’s family or friends of the party;

(b) a communication of a pleading, transcript of evidence, or other document for use in connection with any of the following proceedings, to a person concerned in those proceedings:

(i) proceedings in a court;

(ii) proceedings before an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the applicable Rules of Court;

(iii) proceedings in a tribunal established by or under a law of the Commonwealth or of a State or Territory;

(c) a communication of a pleading, transcript of evidence, or other document, to a prescribed authority of a State or Territory that has responsibilities relating to the welfare of children;

(d) a communication of a pleading, transcript of evidence, or other document, to:

(i) a body that is responsible for disciplining members of a profession in a State or Territory; or

(ii) a person concerned in disciplinary proceedings against a member of a profession in a State or Territory (being proceedings before a body that is responsible for disciplining members of that profession in that State or Territory);

(e) a communication of a pleading, transcript of evidence, or other document, to a body that grants assistance by way of legal aid for the purpose of facilitating a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case;

(f) a communication of material intended primarily for use by the members of any profession (being part of a series of law reports or any other publication of a technical character);

(g) a communication of an account of proceedings to a member of a profession in connection with:

(i) the person’s practice of that profession; or

(ii) any form of professional training in which that person is involved;

(h) a communication of an account of proceedings to a student in connection with the student’s studies.

114T Consent of Director of Prosecutions required to commence proceedings

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.

7 Section 121

Repeal the section.

8 Saving of regulations

Regulations that were in force for the purposes of paragraph 121(9)(aa) of the Family Law Act 1975 immediately before the commencement of this item continue in force after that commencement as if they were regulations in force for the purposes of paragraph 114S(2)(c) of that Act.

9 Application provision

Part XIVB of the Family Law Act 1975, as inserted by this Schedule, 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

10 At the end of subsection 98(2)

Add:

; (t) the power to give directions, or approve communications, for the purposes of subsection 114Q(2) or subparagraph 114R(2)(b)(i) of the Family Law Act 1975.

Schedule 7—Family report writers

Family Law Act 1975

1 Subsection 4(1)

Insert:

civil penalty provision has the same meaning as in the Regulatory Powers Act.

designated family report: see section 11J.

family report writer: see section 11H.

regulator: see paragraph 11K(2)(b).

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

2 Section 11D

Before “A family”, insert “(1)”.

3 At the end of section 11D

Add:

(2) However, if a family consultant is also a family report writer, that protection and immunity:

(a) does not relieve the family consultant of their obligations under regulations made for the purposes of section 11K (regulations prescribing standards and requirements for family report writers); and

(b) does not extend to action taken to enforce such regulations.

4 After Part III

Insert:

Part IIIAA—Family report writers

11H Family report writers

Any individual who prepares a designated family report (see section 11J) is a family report writer.

11J Designated family reports

(1) A report that relates to a child is a designated family report if:

(a) the report is prepared following a family assessment (which usually includes the report’s preparer meeting with the child and others significant to the child’s care, welfare and development and, if appropriate, advising of the child’s views); and

(b) the report sets out the expert views and advice of the report’s preparer on parenting arrangements for the purposes of parenting orders being made by the court in relation to the child; and

(i) covered by subsection (2); and

(ii) not excluded by regulations made for the purposes of this paragraph.

(2) This subsection covers the following reports:

(a) a report prepared for the court by a family consultant in relation to an appointment (or a series of appointments) a party to proceedings has been directed to attend, or to arrange for a child to attend, with the family consultant under section 11F;

(b) a report prepared for the court by a family consultant for the purposes of subsection 55A(2) (report regarding arrangements for the care, welfare and development of a child of a marriage);

(c) a report prepared by a family consultant at the direction of the court under subsection 62G(2) (direction to give report in relation to proceedings in which the care, welfare and development of a child under 18 is relevant);

(d) a report about a child prepared for the use of an independent children’s lawyer as mentioned in subsection 68M(2);

(e) any other report prepared for parties to proceedings before the court, or for the court for the purposes of proceedings before the court.

11K Regulations prescribing standards and requirements for family report writers

Regulations prescribing standards and requirements for family report writers

(1) The regulations may make provision for, and in relation to:

(a) standards and requirements that family report writers, or a class or classes of family report writers, must comply with in connection with the role of preparing designated family reports; and

(b) consequences of non‑compliance with prescribed standards and requirements.

Standards and requirements

(2) Without limiting paragraph (1)(a), regulations made for the purposes of that paragraph may deal with any or all of the following matters:

(a) recognition, monitoring and enforcement of compliance with prescribed standards and requirements;

(b) the person or persons responsible for that recognition, monitoring and enforcement (each such person is a regulator);

(c) duties of family report writers, and persons intending to become family report writers, in relation to establishing and maintaining recognition of their compliance, including duties in relation to providing information and documents to a regulator;

(d) circumstances in which a regulator may collect, use and share information and documents for the purposes of meeting the regulator’s responsibilities;

(e) review of decisions that affect recognition of a family report writer’s compliance;

(f) processes for dealing with persons who make false or misleading representations about a family report writer’s compliance;

(g) processes for handling complaints involving family report writers;

(h) training for family report writers;

(i) the charging of fees, to family report writers, for services provided to them in connection with recognition, and maintenance of recognition, of their compliance;

(j) publication of the names of family report writers who are recognised as complying with prescribed standards and requirements;

(k) publication of information about the named family report writers for the purposes of informing the court, parties to proceedings and the public about any or all of the following:

(i) their qualifications, training and experience;

(ii) their availability;

(iii) the fees they charge;

(iv) their compliance status, including in relation to particular standards or requirements;

(v) any relevant memberships of professional associations, registration or employment;

(vi) any other matters relevant to their role of preparing designated family reports;

(l) standards and requirements in relation to the content of designated family reports.

(3) Regulations dealing with the matter mentioned in paragraph (2)(k) must not require or allow the publication of personal information (within the meaning of the Privacy Act 1988) about any child or other individual to whom a report relates.

Consequences of non‑compliance

(4) Without limiting paragraph (1)(b), regulations made for the purposes of that paragraph may do any or all of the following:

(a) prescribe offences, the penalties for which do not exceed 30 penalty units;

(b) prescribe civil penalty provisions, the penalties for which do not exceed 30 penalty units;

(d) provide that, if a family report writer is not recognised, or if recognition of a family report writer’s compliance is suspended or cancelled, the court must not have regard to designated family reports prepared by the family report writer;

(e) prohibit the preparation of designated family reports by family report writers who are not recognised.

(5) Each civil penalty provision prescribed by regulations made for the purposes of this section (a Part IIIAA civil penalty provision) is enforceable under Part 4 of the Regulatory Powers Act.

Authorised applicant

(6) For the purposes of Part 4 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the Part IIIAA civil penalty provisions:

(a) each regulator;

(b) the Secretary of the Department.

(7) The Secretary of the Department may, in writing, delegate the Secretary’s powers and functions under Part 4 of the Regulatory Powers Act in relation to the Part IIIAA civil penalty provisions to an SES employee, or an acting SES employee, in the Department.

Relevant court

(8) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the Part IIIAA civil penalty provisions:

(a) the Federal Court of Australia;

(b) the Federal Circuit and Family Court of Australia;

11L Disclosure by court to regulator

The court may disclose any of the following to a regulator, for the purposes of the regulator performing the regulator’s functions under the regulations:

(a) a designated family report prepared for or at the direction of the court, or for a party to proceedings before the court;

(b) a final order made by the court in proceedings for which a designated family report was prepared.

11M Immunity of regulator

A regulator is not liable in civil or criminal proceedings for or in relation to anything done or omitted to be done, in good faith, in the performance or exercise, or purported performance or exercise, of the regulator’s functions or powers under regulations made for the purposes of section 11K.

5 At the end of subsection 67ZA(1)

Add:

; or (i) a family report writer who is recognised, in accordance with regulations made for the purposes of section 11K, as complying with prescribed standards and requirements.

6 At the end of subsection 111CV(1A)

Add:

; and (j) a family report writer who is recognised, in accordance with regulations made for the purposes of section 11K, as complying with prescribed standards and requirements.

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

1 Subsection 284(1)

Omit “fifth”, substitute “third”.

Schedule 9—Dual appointments

Federal Circuit and Family Court of Australia Act 2021

1 Section 23

Before “If a person”, insert “(1)”.

2 At the end of section 23

Add:

(2) A person:

(a) may be appointed to the office of Judge of the Federal Circuit and Family Court of Australia (Division 1), regardless of whether the person holds an office of Judge of a Family Court of a State; and

(b) may serve in that office of Judge of the Federal Circuit and Family Court of Australia (Division 1) even if the person continues to hold, and serve in, the office of Judge of the Family Court of that State.

3 Application provision

The amendments of section 23 of the Federal Circuit and Family Court of Australia Act 2021 made by this Schedule apply to the appointment of a person to the office of Judge of the Federal Circuit and Family Court of Australia (Division 1), regardless of whether that appointment is made before, on or after the day this item commences.

Schedule 10—Review of amendments

1 Review of amendments

(1) The Minister must arrange for the conduct of a review of the operation of the amendments made by this Act (other than the amendments made by Schedules 8 and 9). The review is to start as soon as practicable after the third anniversary of the day that Schedule 1 to this Act commences and be completed within 12 months of the day the review starts.

(2) The Minister must arrange for a report of the review to be prepared.

(3) The Minister must table copies of the report in each House of the Parliament within 15 sitting days of that House after completion of the report.

[Minister’s second reading speech made in—

House of Representatives on 29 March 2023

Senate on 13 June 2023]

(43/23)