Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Schedule 1—Amendment of the Family Law Act 1975

Schedule 1 Amendment of the Family Law Act 1975

Part 1 Family law matters to be resolved by State and Territory courts

Family Law Act 1975

1  Subsection 4(1)

Insert:

section 69GA proceedings has the meaning given by subsection 69GA(2).

2  Subsection 28(2)

Repeal the subsection, substitute:

             (2)  The jurisdiction of the Court in an appeal from the following court may be exercised by one Judge or by a Full Court:

                     (a)  a court of summary jurisdiction;

                     (b)  if the appeal is from a decision in section 69GA proceedings the court that made the decision.

3  Subsection 46(1)

Omit “in relation to property of a total value exceeding $20,000”, substitute “in a State or Territory, in relation to property of a total value exceeding the amount referred to in section 46A,”.

4  After section 46

Insert:

46A   Prescribing value of property for the purposes of section 46

             (1)  For the purposes of subsection 46(1), the amount is:

                     (a)  $20,000; or

                     (b)  if a higher amount is prescribed by regulations for the State or Territory in which the court of summary jurisdiction referred to in that subsection is located—that higher amount.

             (2)  Without limiting subsection (1), a higher amount may be prescribed by referring to the jurisdiction conferred on a court of summary jurisdiction under a law of the State or Territory, as in force from time to time.

Consultation with State and Territories

             (3)  Before the Governor-General makes regulations for the purposes of subsection (1) in relation to a particular State or Territory, the Minister must be satisfied that the Minister with responsibility for courts in that State or Territory has been consulted.

             (4)  Subsection (3) does not limit section 17 of the Legislation Act 2003 (rule-makers should consult before making legislative instrument).

5  Application of amendments

The amendments of section 46 of the Family Law Act 1975 made by this Part, and section 46A of that Act as inserted by this Part, apply in relation to proceedings instituted after the commencement of this Part.

6  After section 69G

Insert:

69GA   Operation of this Subdivision in relation to prescribed courts

             (1)  This section applies if, for the purposes of this section, the regulations prescribe one or more courts (whether in relation to proceedings generally or specified classes of proceedings).

Prescribed State and Territory courts

             (2)  This Subdivision applies in relation to proceedings (the section 69GA proceedings ) that are:

                     (a)  heard in a court prescribed for the purposes of subsection (1); and

                     (b)  if the regulations specify classes of proceedings in relation to the court—proceedings in that class;

in the same way as this Subdivision would apply if those proceedings were heard in a court of summary jurisdiction.

Applicable rules of court

             (3)  The regulations may prescribe the Rules of Court, as in force from time to time, that are to apply in relation to section 69GA proceedings. Without limiting subsection 33(3A) of the Acts Interpretation Act 1901 , the rules of court prescribed may relate to a particular court or courts generally.

             (4)  The Rules of Court made under section 123, as in force from time to time, apply in relation to section 69GA proceedings heard in a particular court if:

                     (a)  the regulations do not prescribe rules of court in relation to that court; or

                     (b)  both of the following apply:

                              (i)  the rules of court prescribed by the regulations in relation to that court do not deal with a matter arising in the proceedings;

                             (ii)  the Rules of Court made under section 123 deal with that matter.

Consultation with State and Territories

             (5)  Before the Governor-General makes regulations for the purposes of subsection (1) or (3) in relation to a particular court or courts in a State or Territory, the Minister must be satisfied that the Minister with responsibility for courts in that State or Territory has been consulted.

             (6)  Subsection (5) does not limit section 17 of the Legislation Act 2003 (rule-makers should consult before making legislative instrument).

7  Application of amendments

Section 69GA of the Family Law Act 1975 , as inserted by this Part, applies to decisions made after the commencement of this Part, whether the proceedings in which the decision was made were instituted before or after that commencement.

8  Subsection 69J(1) (note)

Repeal the note, substitute:

Note:          This section may apply to proceedings heard in a court prescribed by the regulations for the purposes of section 69GA in the same way as this section would apply if those proceedings were heard in a court of summary jurisdiction.

9  At the end of subsection 69N(1)

Add:

Note:          This section may apply to proceedings heard in a court prescribed by the regulations for the purposes of section 69GA in the same way as this section would apply if those proceedings were heard in a court of summary jurisdiction.

10  At the end of Division 12 of Part VII

Add:

Subdivision G Short form reasons for decisions relating to interim parenting orders

69ZL   Short form reasons for decisions relating to interim parenting orders

             (1)  A court may give reasons in short form for a decision it makes in relation to an interim parenting order.

             (2)  Subsection (1) does not otherwise affect the obligation of a court to give reasons for a decision it makes in relation to any matter arising under this Act.

11  At the end of section 96

Add:

Section 69GA proceedings treated like proceedings in courts of summary jurisdiction

             (7)  This section applies to section 69GA proceedings in the same way as this section would apply if the proceedings were heard in a court of summary jurisdiction.

12  Application of amendments

Subsection 96(7) of the Family Law Act 1975 , as inserted by this Part, applies to decisions made after the commencement of this Part, whether the proceedings in which the decision was made were instituted before or after that commencement.

13  Subsection 123(1)

After “followed in the Family Court and”, insert “, subject to subsection 69GA(3),”.

Part 2 Strengthening the powers of the courts to protect victims of family violence

Division 1—Amendments commencing day after Royal Assent

Family Law Act 1975

14  After section 45

Insert:

45A   Summary decrees

No reasonable prospect of successfully defending proceedings

             (1)  The court may make a decree for one 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 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 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.

This section does not limit other powers

             (8)  This section does not limit any powers that the court has apart from this section.

Note:          Part XIB also gives courts powers relating to vexatious proceedings.

15  Application of amendments

Section 45A of the Family Law Act 1975 , as inserted by this Division, applies to proceedings instituted before or after the commencement of this Division.

16  At the end of subsection 60CC(1)

Add:

Note:          Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.

17  After subsection 68P(2)

Insert:

          (2A)  Subparagraph (2)(c)(iii) does not apply to a child if the court is satisfied that it is in the child’s best interests not to receive an explanation of the order or injunction.

          (2B)  Paragraph (2)(d) does not require inclusion of a matter in an explanation given to a child if the court is satisfied that it is in the child’s best interests for the matter not to be included in the explanation.

          (2C)  In determining whether it is satisfied as described in subsection (2A) or (2B), the court:

                     (a)  must have regard to all or any of the matters set out in subsection 60CC(2); and

                     (b)  despite section 60CC, may have regard to all or any of the matters set out in subsection 60CC(3).

18  Subsection 68T(1)

Omit “earlier”, substitute “earliest”.

19  Paragraph 68T(1)(b)

Repeal the paragraph, substitute:

                     (b)  the time specified in the interim order as the time at which the revival, variation or suspension ceases to have effect; and

                     (c)  the time the order, injunction or arrangement is affected by an order (however described) made by a court, under section 68R or otherwise, after the revival, variation or suspension.

20  Application of amendments

The amendments of section 68T of the Family Law Act 1975 made by this Division apply in relation to revivals, variations and suspensions of orders, injunctions and arrangements if the revivals, variations and suspensions are made under section 68R of that Act after the commencement of this Division.

21  Section 102QA (note)

Repeal the note, substitute:

Note:          For example, subsection 45A(4) allows a court to dismiss proceedings if it is satisfied that they are vexatious.

22  Subsection 117(1)

Omit “subsection 70NFB(1) and sections 117AA, 117AC and 118”, substitute “subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC”.

23  Section 118

Repeal the section.

24  Application of amendments

(1)       The repeal of section 118 of the Family Law Act 1975 by this Division applies to proceedings instituted before or after the commencement of this Division.

(2)       However, to avoid doubt, that repeal does not affect any action taken under that section before the repeal of that section.

Federal Circuit Court of Australia Act 1999

25  At the end of section 17A

Add:

             (5)  This section does not apply if the Federal Circuit Court of Australia is exercising jurisdiction under the Family Law Act 1975 .

Note:          For the power of the Federal Circuit Court of Australia to give summary judgment if the Court is exercising jurisdiction under the Family Law Act 1975 , see section 45A of that Act.

Division 2—Amendments commencing on Proclamation

Family Law Act 1975

26  Subsection 60CB(2)

After “or section”, insert “68D or”.

27  Section 68C

Repeal the section, substitute:

68C   Offence for breaching injunction

             (1)  A person (the respondent ) commits an offence if:

                     (a)  an injunction is in force under section 68B that is expressed to be for the personal protection of another person; and

                     (b)  the injunction is directed against the respondent; and

                     (c)  the respondent engages in conduct; and

                     (d)  the conduct breaches the injunction.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

No consideration of evidence of self-induced intoxication

             (2)  Despite subsections 8.2(3) and (4) of the Criminal Code , evidence of self-induced intoxication cannot be considered in determining, for the purposes of subsection (1) of this section, whether:

                     (a)  conduct was accidental; or

                     (b)  a person had a mistaken belief about facts if the person had considered whether or not the facts existed.

             (3)  Despite subsection 8.4(1) of the Criminal Code , evidence of self-induced intoxication cannot be considered in determining, for the purposes of subsection (1) of this section, in relation to any part of a defence that is based on actual knowledge or belief, whether that knowledge or belief existed.

Extension of criminal responsibility

             (4)  Section 11.2 or 11.2A of the Criminal Code (complicity, common purpose and joint commission) does not apply in relation to conduct engaged in by a person if:

                     (a)  as a result of the conduct:

                              (i)  the person would be taken under section 11.2 of the Criminal Code to commit an offence under subsection (1) of this section; or

                             (ii)  the person would be taken to commit an offence referred to in subsection 11.2A(2) or (3) of the Criminal Code ; and

                     (b)  the injunction referred to in subsection (1) is expressed to be for the personal protection of the person.

68D   Power of court to revive, vary or suspend an existing injunction etc.

             (1)  This section applies if a court of a State or Territory is hearing a proceeding for an offence against section 68C in relation to a breach by a person of an injunction granted under section 68B in relation to a child.

Power

             (2)  The court may revive, vary or suspend:

                     (a)  the injunction; or

                     (b)  any of the following instruments to which the person is a party, to the extent that the instrument provides for that or any other child to spend time with the person, or expressly or impliedly requires or authorises the person to spend time with that or any other child:

                              (i)  a parenting order;

                             (ii)  a recovery order (as defined in section 67Q) or any other order under this Act;

                            (iii)  an injunction granted under section 114;

                            (iv)  an undertaking given to, and accepted by, a court exercising jurisdiction under this Act;

                             (v)  a registered parenting plan within the meaning of subsection 63C(6);

                            (vi)  a recognisance entered into under an order under this Act.

             (3)  The court may do so:

                     (a)  on its own initiative; or

                     (b)  on application by any person.

Limits on power

             (4)  The court must not revive, vary or suspend an instrument referred to in paragraph (2)(a) or subparagraph (2)(b)(i) to (iii) unless the court has before it material that was not before the court that made the injunction or order.

Relevant considerations

             (5)  In exercising its power under subsection (2), the court must have regard to the objects of this Part and the principles underlying it, as set out in section 60B.

Registration of revival, variation or suspension of injunctions etc.

             (6)  The regulations may require a copy of the court’s decision to revive, vary or suspend an injunction, order, undertaking, plan or recognisance to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.

Cessation of revival, variation or suspension of injunctions etc.

             (7)  A revival, variation or suspension under this section ceases to have effect at the earlier of:

                     (a)  the time specified by the court as the time at which the revival, variation or suspension ceases to have effect; and

                     (b)  the time the injunction, order, undertaking, plan or recognisance is affected by an order (however described) made by a court, under this section or otherwise, after the revival, variation or suspension.

68E   Application of Act and Rules when exercising section 68D power

             (1)  The following provisions do not apply to a court exercising the power under section 68D:

                     (a)  section 60CG (court to consider risk of family violence);

                     (b)  section 65C (who may apply for a parenting order);

                     (c)  subsection 65F(2) (parenting order not to be made unless parties attend family counselling);

                     (d)  section 69N (requirement to transfer certain proceedings);

                     (e)  any provisions (for example, section 60CA) that would otherwise make the best interests of the child the paramount consideration;

Note:          Even though the best interests of the child are not paramount, they must still be taken into account under subsection 68D(5).

                      (f)  any provisions of this Act or the applicable Rules of Court specified in the regulations.

             (2)  If a court is exercising the power under section 68D, the court has a discretion about whether to apply paragraph 60CC(3)(a) (about taking into account a child’s views etc.).

             (3)  A court exercising the power under section 68D may, as it thinks appropriate, dispense with any otherwise applicable Rules of Court.

28  Section 114AA

Repeal the section, substitute:

114AA   Offence for breaching injunction

             (1)  A person (the respondent ) commits an offence if:

                     (a)  an injunction is in force under section 114 that is expressed to be for the personal protection of another person; and

                     (b)  the injunction is directed against the respondent; and

                     (c)  the respondent engages in conduct; and

                     (d)  the conduct breaches the injunction.

Penalty:  Imprisonment for 2 years, or 120 penalty units, or both.

No consideration of evidence of self-induced intoxication

             (2)  Despite subsections 8.2(3) and (4) of the Criminal Code , evidence of self-induced intoxication cannot be considered in determining, for the purposes of subsection (1) of this section, whether:

                     (a)  conduct was accidental; or

                     (b)  a person had a mistaken belief about facts if the person had considered whether or not the facts existed.

             (3)  Despite subsection 8.4(1) of the Criminal Code , evidence of self-induced intoxication cannot be considered in determining, for the purposes of subsection (1) of this section, in relation to any part of a defence that is based on actual knowledge or belief, whether that knowledge or belief existed.

Extension of criminal responsibility

             (4)  Section 11.2 or 11.2A of the Criminal Code (complicity, common purpose and joint commission) does not apply in relation to conduct engaged in by a person if:

                     (a)  as a result of the conduct:

                              (i)  the person would be taken under section 11.2 of the Criminal Code to commit an offence under subsection (1) of this section; or

                             (ii)  the person would be taken to commit an offence referred to in subsection 11.2A(2) or (3) of the Criminal Code ; and

                     (b)  the injunction referred to in subsection (1) is expressed to be for the personal protection of the person.

114AAB   Power of court to revive, vary or suspend an existing injunction etc.

             (1)  This section applies if a court of a State or Territory is hearing a proceeding for an offence against section 114AA in relation to a breach by a person of an injunction granted under section 114.

Power

             (2)  The court may revive, vary or suspend:

                     (a)  the injunction; or

                     (b)  any of the following instruments to which the person is a party, to the extent that the instrument provides for a child to spend time with the person, or expressly or impliedly requires or authorises the person to spend time with a child:

                              (i)  a parenting order;

                             (ii)  a recovery order (as defined in section 67Q) or any other order under this Act;

                            (iii)  an injunction granted under section 68B;

                            (iv)  an undertaking given to, and accepted by, a court exercising jurisdiction under this Act;

                             (v)  a registered parenting plan within the meaning of subsection 63C(6);

                            (vi)  a recognisance entered into under an order under this Act.

             (3)  The court may do so:

                     (a)  on its own initiative; or

                     (b)  on application by any person.

Limits on power

             (4)  The court must not revive, vary or suspend an instrument referred to in paragraph (2)(a) or subparagraph (2)(b)(i) to (iii) unless the court has before it material that was not before the court that made the injunction or order.

Relevant considerations

             (5)  In exercising its power under subsection (2), the court must have regard to the objects of Part VII and the principles underlying it, as set out in section 60B.

Registration of revival, variation or suspension of injunctions etc.

             (6)  The regulations may require a copy of the court’s decision to revive, vary or suspend an injunction, order, undertaking, plan or recognisance to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.

Cessation of revival, variation or suspension of injunctions etc.

             (7)  A revival, variation or suspension under this section ceases to have effect at the earlier of:

                     (a)  the time specified by the court as the time at which the revival, variation or suspension ceases to have effect; and

                     (b)  the time the injunction, order, undertaking, plan or recognisance is affected by an order (however described) made by a court, under this section or otherwise, after the revival, variation or suspension.

114AAC   Application of Act and Rules when exercising section 114AAB power

             (1)  The following provisions do not apply to a court exercising the power under section 114AAB:

                     (a)  section 60CG (court to consider risk of family violence);

                     (b)  section 65C (who may apply for a parenting order);

                     (c)  subsection 65F(2) (parenting order not to be made unless parties attend family counselling);

                     (d)  section 69N (requirement to transfer certain proceedings);

                     (e)  any provisions (for example, section 60CA) that would otherwise make the best interests of the child the paramount consideration;

Note:          Even though the best interests of the child are not paramount, they must still be taken into account under subsection 114AAB(5).

                      (f)  any provisions of this Act or the applicable Rules of Court specified in the regulations.

             (2)  If a court is exercising the power under section 114AAB, the court has a discretion about whether to apply paragraph 60CC(3)(a) (about taking into account a child’s views etc.).

             (3)  A court exercising the power under section 114AAB may, as it thinks appropriate, dispense with any otherwise applicable Rules of Court.

29  Application of amendments

Offences

(1)       Sections 68C and 114AA of the Family Law Act 1975 , as inserted by this Division, apply in relation to conduct engaged in after the commencement of this Part.

Power of court in relation to injunctions

(2)       Sections 68D and 68E of the Family Law Act 1975 , as inserted by this Division, apply in relation to proceedings that occur after the commencement of this Division, whether those proceedings relate to an injunction granted under section 68B of that Act before or after the commencement of this Division.

(3)       Sections 114AAB and 114AAC of the Family Law Act 1975 , as inserted by this Division, apply in relation to proceedings that occur after the commencement of this Division, whether those proceedings relate to an injunction granted under section 114 of that Act before or after the commencement of this Division.

Part 3 Other amendments

Family Law Act 1975

30  Subsection 114(2)

Repeal the subsection.