Key statutory provisions in Family Law Act (Cth) and Family Court Act (WA)

The Family Law Amendment Bill 2023 (Cth) is currently before Parliament. The Bill amends the Family Law Act 1975 to:

  • amend the parenting order framework by refining the list of ‘best interests’ factors, removing the presumption of equal shared parental responsibility and related equal time and substantial and significant time provision, and clarifying the circumstances in which a court can vary an existing parenting order;
  • redraft provisions relating to compliance with, and enforcement of, parenting orders;
  • amend definitions relating to the concept of ‘family’ to be more inclusive of Aboriginal and Torres Strait Islander culture and traditions;
  • permit the appointment of independent children’s lawyers (ICLs) in matters brought under the Hague Convention and require ICLs to meet with a child and give them an opportunity to express a view;
  • clarify restrictions on communicating identifiable information arising in family proceedings; and enable standards and requirements to be prescribed for professionals who prepare family reports;
  • makes consequential amendments to the Child Support (Assessment) Act 1989 and Federal Circuit and Family Court of Australia Act 2021;

Amends the Federal Circuit and Family Court of Australia Act 2021 to:

  • allow registrars of the Federal Circuit and Family Court of Australia (FCFCOA) to be delegated the power to impose a make-up time parent order in contravention proceedings;
  • bring forward the review of the Act by 2 years;
  • provide that a judge of the Family Court of Western Australia can be dually appointed as a judge of Division 1 of the FCFCOA; and

Amends Family Law Act 1975 and Federal Circuit and Family Court of Australia Act 2021

  • to introduce ‘harmful proceedings orders’ and extend the ‘overarching purpose of family law practice and procedure’ and the accompanying duty to all proceedings instituted under the Family Law Act 1975.

More information can be found here:

www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7011
  • Commonwealth Family Law Act 1975

    Definitions

    Best interests of the child

    • Objects of Part – Section 60B
    • Child's best interests paramount consideration in making a parenting order – Section 60CA
    • How a court determines what is in a child's best interests – Section 60CC (note: s60CC(2A) risk of harm prioritised over meaningful relationship)
    • Informing court of relevant family violence orders – Section 60CF
    • Court to consider risk of family violence – Section 60CG
    • Informing court of care arrangements under child welfare laws – Section 60CH
    • Informing court of notifications to, and investigations by, prescribed State or Territory agencies – Section 60CI
    • Adviser’s obligations in relation to best interests of the child – Section 60D

    Family dispute resolution

    • Attending family dispute resolution before applying for Part VII order – Section 60I (note: exception in s60I(9))
    • Family dispute resolution not attended because of child abuse or family violence – Section 60J

    Parental responsibility

    • Meaning of parental responsibility – Section 61B
    • Presumption of equal shared parental responsibility when making parenting orders – Section 61DA

    Parenting orders

    • Court to consider child spending equal time or substantial or significant time with each parent in certain circumstances – Section 65DAA
    • Effect of parenting order that provides for shared parental responsibility – Section 65DAC

    Allegations of child abuse and family violence

    • Where member of the Court personnel, family counsellor et al suspects child abuse etc – Section 67ZA
    • Where interested person makes allegation of family violence – Section 67ZBA
    • Court to take prompt action in relation to allegations of child abuse or family violence – Section 67ZBB
    • Cross examination of parties where allegations of family violence – Sections 102NA and 102NB

    Injunctions

    Recovery orders

    Family violence

    • Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order – Section 68P
    • Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act – Section 68R
    • Special provisions relating to proceedings to make an interim (or interim variation of) family violence order – Section 68T

    Conducting child-related proceedings

    Vexatious proceedings

  • Western Australia Family Court Act 1997

    Definitions

    Best interests of the child

    • Objects of Part – Section 66
    • Child's best interests paramount consideration in making a parenting order – Section 66A
    • How a court determines what is in a child's best interests – Section 66C (note: s66C(3A) risk of harm prioritised over meaningful relationship)
    • Informing court of relevant family violence orders – Section 66F
    • Court to consider risk of family violence – Section 66G
    • Informing court of care arrangements under child welfare laws – Section 66HA
    • Informing court of notifications to, and investigations by, prescribed State or Territory agencies – Section 66HB
    • Adviser’s obligations in relation to best interests of the child – Section 66HC

    Family dispute resolution

    • Attending family dispute resolution before applying for Part VII order – Section 66H (note: exception in s66H(8))
    • Family dispute resolution not attended because of child abuse or family violence – Section 66I

    Parental responsibility

    • Term used: parental responsibility – Section 68
    • Presumption of equal shared parental responsibility when making parenting orders – Section 70A

    Parenting orders

    • Court to consider child spending equal time or substantial or significant time with each parent in certain circumstances – Section 89AA
    • Effect of parenting order that provides for shared parental responsibility – Section 89AC

    Allegations of child abuse and family violence

    • Where member of the Court personnel, family counsellor et al suspects child abuse etc – Section 160
    • Where interested person makes allegations of family violence – Section 162A
    • Court to take prompt action in relation to allegations of child abuse or family violence – Section 162B

    Injunctions

    Recovery orders

    Family violence

    • Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order – Section 174
    • Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act – Section 176
    • Special provisions relating to proceedings to make an interim (or interim variation of) family violence order – Section 178

    Conducting child-related proceedings

    • Principles for conducting child-related proceedings – Section 202B
    • Evidence relating to child abuse or family violence – Section 202K

    Vexatious proceedings