PART 3: Significant changes to family law being ushered in with the Family Law Amendment Act 2023

Part 3 of our 3-part series discussing the changes to the Family law amendment act, covers the following schedules:

Schedule 5: Case Management and Procedure;
Schedule 6: Communication of details of family law proceedings;
Schedule 7: Family report writers;
Schedule 8: Review of the operation of the FCFCOA
Schedule 9: Dual appointments
Schedule 10: Review of appointments

Schedule 5: Case Management and Procedure

Schedule 5 introduces two new parts into the Family Law Act:

Part 1: Harmful Proceedings Orders

Courts gain the authority to issue harmful proceedings orders, either on their own initiative or upon application by a party during ongoing proceedings. These orders restrict vexatious litigants from filing and serving new applications without obtaining prior leave from the court. Prior to making a harmful proceedings order, the court must be convinced that there are reasonable grounds to believe that further proceedings would cause harm to the respondent, which can include psychological harm, oppression, major mental distress, actions detrimental to a party’s ability to care for a child, or financial harm.

Part 2: Overarching Purpose of Family Law Practice and Procedure

Part 2 broadens and extends the overarching purpose of family law practice and procedure, as well as the accompanying duty, to all proceedings initiated under the Family Law Act. The overarching purpose is to facilitate the just resolution of disputes:

a) In a manner ensuring the safety of families and children
b) Particularly in proceedings where the best interests of a child are paramount, promoting the best interests of the child
c) In adherence to the law
d) As swiftly, inexpensively, and efficiently as possible.

Parties and their legal representatives are duty-bound to conduct proceedings consistently with this overarching purpose. Breaches of this duty may lead to cost orders against parties and legal representatives.

Commencement and Application Information

Schedule 5 will commence on May 6, 2024.

Part 1 applies to all proceedings initiated on or after May 6, 2024, and ongoing proceedings as of that date.

Part 2 applies to all proceedings initiated on or after May 6, 2024, and ongoing proceedings as of that date, excluding cases where the final hearing has commenced.

Schedule 6: Communication of Details of Family Law Proceedings

Schedule 6 repeals section 121 of the Family Law Act and introduces new Part XIVB, maintaining existing penalties and offences. The purpose is to simplify language and clarify when individuals can share identifiable family law information.

Currently, section 121 of the Family Law Act imposes penalties and offences on parties who publish information about family law proceedings. The new Part XIVB will provide further clarity about those penalties, and will have separate offences and penalties for different types of disclosure/publication. The simplified outline of the new part reads as follows:

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.

Commencement and Application Information

Schedule 6 will commence on May 6, 2024, and apply to acts or omissions occurring on or after that day.

Schedule 7: Family Report Writers

These changes empower the Government to create regulations establishing standards and requirements for family report writers, akin to existing powers for family dispute resolution practitioners and family counsellors. Regulations will be developed following stakeholder consultation.

Commencement Information

Schedule 7 will commence on May 6, 2024.

Schedule 8: Review of the Operation of the FCFCOA

The review of the FCFCOA Act will commence in September 2024, two years earlier than originally planned.

Schedule 9: Dual Appointments

This change explicitly permits a person to be appointed and serve as a Judge of the FCFCOA (Division 1) irrespective of whether the person holds office as a judge of the Family Court of a State.

Schedule 10: Review of Amendments

A review of the Amendment Act’s operation will start as soon as possible after its third anniversary and be completed within twelve months. A report of the review must be tabled in Parliament.