Family Court Amendment (Commonwealth Reforms) Bill 2024 - Bill as passed by originating House

Australia / Western Australia / Bills

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Bill No.187

19 Sep 2024

Legislative Assembly Third Read - 24 Oct 2024

187—1 page i

Western Australia

Family Court Amendment (Commonwealth

Reforms) Bill 2024

Contents

Part 1 — Preliminary

1. Short title 2 2. Commencement 2

Part 2 — Family Court Act 1997

amended

3. Act amended 3 4. Section 4 amended 3 5. Section 5 amended 3 6. Section 6 amended 7 7. Section 7 amended 8 8. Section 8 amended 9 9. Section 24 amended 9 10. Section 33 amended 10 11. Section 33B inserted 11

33B. Protection of registrars 11 12. Section 37 amended 11 13. Section 43 amended 12 14. Section 43A amended 13 15. Section 43B inserted 14

43B. Transfer of proceedings to the Court — FLA s. 46(3A) 14

16. Section 47 amended 14 17. Section 51 amended 15 18. Part 4 Division 4 inserted 16

Division 4 — Post-separation parenting programs 59A. Admissibility of communications in

post-separation parenting programs — FLA s. 10PA 16

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19. Section 62 amended 17 20. Section 63 amended 17 21. Part 4AA inserted 18

Part 4AA — Family report writers 65AA. Family report writers — FLA s. 11H 18 65AB. Designated family reports — FLA s. 11J 18 65AC. Regulations prescribing standards and

requirements for family report writers — FLA s. 11K 19

65AD. Disclosure by court to regulator — FLA s. 11L 22

65AE. Immunity of regulator — FLA s. 11M 22 22. Section 65G amended 22 23. Part 5 Division 1 Subdivision 1 heading amended 23 24. Section 66 replaced 23

66. Objects of Part — FLA s. 60B 23 25. Section 66C replaced 23

66C. How a court determines what is in child’s best interests — FLA s. 60CC 23

26. Section 66D amended 25 27. Section 66HB amended 26 28. Section 66HC amended 27 29. Section 66H amended 27 30. Section 66I amended 28 31. Section 69A inserted 29

69A. Consultation between parents on major long-term issues — FLA s. 61CA 29

32. Section 70 amended 29 33. Sections 70A and 70B replaced 30

70A. Effect of parenting order that provides for joint decision-making about major long-term issues — FLA s. 61DAA 30

70B. No need to consult on issues that are not major long-term issues — FLA s. 61DAB 30

34. Section 78A amended 31 35. Section 86 amended 31 36. Section 89 amended 31 37. Section 89AAA inserted 32

89AAA. Reconsideration of final parenting orders — FLA s. 65DAAA 32

38. Section 89AA deleted 33 39. Sections 89AC and 89AD deleted 33

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40. Section 91 amended 33 41. Part 5 Division 6 Subdivisions 3 and 4 deleted 33 42. Section 106 amended 33 43. Sections 107 and 108 replaced 34

107. Obligations if certain parenting orders have been made: taking or sending child outside Australia — FLA s. 65Y 34

107A. Obligations if certain parenting orders have been made: retaining child outside Australia — FLA s. 65YA 35

108. Obligations if proceedings for the making of certain parenting orders are pending: taking or sending child outside Australia — FLA s. 65Z 37

108A. Obligations if proceedings for the making of certain parenting orders are pending: retaining child outside Australia — FLA s. 65ZAA 38

44. Section 109 amended 40 45. Section 110 amended 41 46. Section 111 amended 43 47. Section 133 amended 43 48. Section 160 amended 43 49. Section 162B amended 44 50. Part 5 Division 8 Subdivision 4A inserted 44

Subdivision 4A — Orders for information in child-related proceedings

162C. Meaning of information sharing agency — FLA s. 67ZBC 44

162D. Order to provide particulars of documents or information relating to certain matters — FLA s. 67ZBD 44

162E. Order to provide documents or information relating to certain matters — FLA s. 67ZBE 46

162F. Disclosure of protected material — FLA s. 67ZBF 48

162G. Advice to court about risk of disclosure — FLA s. 67ZBG 50

162H. Admission of particulars, documents or information into evidence — FLA s. 67ZBH 50

162I. Information sharing agencies and court must have regard to information sharing safeguards — FLA s. 67ZBI 52

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162J. When orders may be made — FLA s. 67ZBJ 52

162K. Subpoena in respect of certain documents or information — FLA s. 67ZBK 53

51. Section 163 replaced 53 163. Orders for delivery of travel documents —

FLA s. 67ZD 53 52. Section 164 amended 54 53. Section 165 amended 54 54. Section 173 amended 55 55. Section 174 amended 55 56. Section 176 amended 56 57. Section 177 amended 56 58. Section 178 amended 56 59. Section 188 amended 57 60. Section 194A inserted 57

194A. Declarations of parentage — FLA s. 69VA 57 61. Part 5 Division 11 Subdivision 6 inserted 58

Subdivision 6 — Short form reasons for decisions

relating to interim parenting orders 202AA. Short form reasons for decisions relating

to interim parenting orders — FLA s. 69ZL 58 62. Section 202K deleted 58 63. Part 5 Division 13 replaced 58

Division 13 — Orders in proceedings relating to

contraventions of child-related orders Subdivision 1 — Preliminary 205A. Simplified outline — FLA s. 70NAA 58 205B. Objects — FLA s. 70NAB 60 205C. Meaning of contravene a child-related

order — FLA s. 70NAC 60 205D. Meaning of reasonable excuse for

contravening a child-related order — FLA s. 70NAD 62

205E. Burden of proof in relation to reasonable excuse — FLA s. 70NADA 63

205F. Standard of proof — FLA s. 70NAE 63 Subdivision 2 — Orders relating to contraventions of

child-related orders 205G. Court may make orders in proceedings

relating to contravention of child-related orders — FLA s. 70NBA 64

205H. Make-up time parenting orders — FLA s. 70NBB 65

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205I. Variation and suspension of child-related orders that are parenting orders — FLA s. 70NBC 65

205J. Post-separation parenting programs — FLA 70NBD 66

205K. Orders where contravention established without reasonable excuse — FLA s. 70NBF 67

Subdivision 3 — Further provisions relating to bonds and imprisonment

205L. Matters relating to bonds — FLA s. 70NCA 68

205M. Procedure for enforcing bonds — FLA s. 70NCB 69

205N. Matters relating to imprisonment — FLA s. 70NCC 70

205O. Powers of court in relation to imprisoned person — FLA s. 70NCD 71

205P. Rules relating to child maintenance orders and child support — FLA s. 70NCE 72

Subdivision 4 — Miscellaneous 205Q. Court may issue warrant for arrest of

alleged offender — FLA s. 70NDA 73 205R. Relationship between Division and

prosecutions for offences under other laws — FLA s. 70NDB 73

Division 14 — Dealing with people who have been arrested

Subdivision 1 — What this Division does 205S. What this Division does — FLA s. 70P 74 Subdivision 2 — Dealing with people who have been

arrested 205SA. Situation to which this Subdivision

applies — FLA s. 70PA 74 205SB. Arrested person to be brought before

court — FLA s. 70PB 75 205SC. Obligation of court where application

before it to deal with contravention — FLA s. 70PC 76

205SD. Obligation of court where no application before it, but application before another court, to deal with contravention — FLA s. 70PD 76

205SE. Obligation of court where no application before any court to deal with contravention — FLA s. 70PE 78

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205SF. Applications heard as required by section 205SC(2) or 205SD(3)(b) — FLA s. 70PF 78

64. Part 8 Division 1A inserted 79 Division 1A — Overarching purpose of the family law

practice and procedure provisions 211C. Overarching purpose of the family law

practice and procedure provisions — FLA s. 95 79

211D. Duty to act consistently with overarching purpose — FLA s. 96 80

65. Section 212 amended 82 66. Section 214C amended 82 67. Section 219AI amended 82 68. Parts 8A and 8B inserted 83

Part 8A — Suppression and non-publication orders Division 1 — Preliminary 219AM. Terms used — FLA s. 102P 83 219AN. Powers of a court not affected — FLA

s. 102PA 84 219AO. Other laws not affected — FLA s. 102PB 84 219AP. Relationship with Part 11A — FLA

s. 102PC 84 Division 2 — Suppression and non-publication

orders 219AQ. Safeguarding public interest in open

justice — FLA s. 102PD 84 219AR. Power to make orders — FLA s. 102PE 84 219AS. Grounds for making an order — FLA

s. 102PF 85 219AT. Procedure for making an order — FLA

s. 102PG 86 219AU. Interim orders — FLA s. 102PH 87 219AV. Duration of orders — FLA s. 102PI 87 219AW. Exception for court officials — FLA

s. 102PJ 88 219AX. Contravention of order — FLA s. 102PK 88

Part 8B — Decrees and orders relating to unmeritorious, harmful, and vexatious proceedings

Division 1 — Preliminary 219AY. Terms used — FLA s. 102Q 89 219AZ. Interactions between provisions and with

other powers of court — FLA s. 102QA 91

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Division 2 — Summary decrees 219AZA. Summary decrees — FLA s. 102QAB 91 Division 3 — Harmful proceedings orders Subdivision 1 — Making harmful proceedings orders 219AZB. Making harmful proceedings orders —

FLA s. 102QAC 93 Subdivision 2 — Consequences of harmful

proceedings orders 219AZC. Proceedings in contravention of harmful

proceedings order — FLA s. 102QAD 95 219AZD. Application for leave to institute

proceedings — FLA s. 102QAE 96 219AZE. Dismissing application for leave —

FLA s. 102QAF 96 219AZF. Granting application for leave —

FLA s. 102QAG 97 Division 4 — Vexatious proceedings orders Subdivision 1 — Making vexatious proceedings

orders 219AZG. Making vexatious proceedings orders —

FLA s. 102QB 97 219AZH. Notification of vexatious proceedings

orders — FLA s. 102QC 99 Subdivision 2 — Consequences of vexatious

proceedings orders 219AZI. Proceedings in contravention of vexatious

proceedings order — FLA s. 102QD 100 219AZJ. Application for leave to institute

proceedings by person subject to vexatious proceedings order — FLA s. 102QE 101

219AZK. Dismissing application for leave by person subject to vexatious proceedings order — FLA s. 102QF 102

219AZL. Granting application for leave by person subject to vexatious proceedings order — FLA s. 102QG 102

69. Section 220A amended 103 70. Section 231 amended 104 71. Section 233A amended 104 72. Section 234 amended 104 73. Part 11A inserted 105

Part 11A — Restriction on communication of accounts and lists of proceedings

236A. Terms used — FLA s. 114P 105

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236B. Indictable offence: communication to the public of account of proceedings that identifies parties or others involved in proceedings — FLA s. 114Q 105

236C. Indictable offence: communication to the public of list of court proceedings that refers to names of parties — FLA s. 114R 107

236D. When a communication is not a communication to the public — FLA s. 114S 108

236E. Consent of DPP required to commence proceedings — FLA s. 114T 110

74. Section 237 amended 110 75. Section 238 amended 111 76. Section 240 amended 111 77. Sections 242 and 243 deleted 111 78. Section 243A replaced 111

243A. Making arrests under this Act or warrants — FLA s. 122A 111

243B. Powers to enter and search premises, and stop conveyances, for making arrests under this Act or warrants — FLA s. 122AA 113

79. Section 244 amended 114 80. Section 245 amended 115 81. Section 247 amended 115 82. Schedule 2 Division 4 inserted 115

Division 4 — Provisions for Family Court Amendment (Commonwealth Reforms)

Act 2024 14. Application of amendments 115

Part 3 — Other Acts amended

83. Adoption Act 1994 amended 121 84. Surrogacy Act 2008 amended 121

page 1

Western Australia

LEGISLATIVE ASSEMBLY

Family Court Amendment (Commonwealth

Reforms) Bill 2024

A Bill for

An Act to amend the Family Court Act 1997 and to consequentially

amend other Acts.

The Parliament of Western Australia enacts as follows:

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 1 Preliminary

s. 1

page 2

Part 1 — Preliminary 1

1. Short title 2

This is the Family Court Amendment (Commonwealth Reforms) 3

Act 2024. 4

2. Commencement 5

This Act comes into operation as follows — 6

(a) Part 1 — on the day on which this Act receives the 7

Royal Assent; 8

(b) the rest of the Act — on a day fixed by proclamation. 9

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 3

page 3

Part 2 — Family Court Act 1997 amended 1

3. Act amended 2

This Part amends the Family Court Act 1997. 3

4. Section 4 amended 4

(1) In section 4 delete “Without limiting section 32(2) of the 5

Interpretation Act 1984, a” and insert: 6

(1) A 8

(2) At the end of section 4 insert: 10

(2) A reference to “FCFCAA” followed by a section 12

designation in the heading to a section of this Act is a 13

reference to the section of the Federal Circuit and 14

Family Court of Australia Act 2021 (Commonwealth) 15

with which the section in this Act is comparable. 16

(3) Nothing in this section limits the Interpretation 17

Act 1984 section 32(2). 18

Note: The heading to amended section 4 is to read: 20

References in section headings and definitions to comparable 21

provisions of Commonwealth Acts 22

5. Section 5 amended 23

(1) In section 5(1) delete the following definitions and any 24

reference immediately before each definition to “FLA” followed 25

by a section designation: 26

community service order 27

contravened an order 28

Family Court of Australia 29

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 5

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order under this Act affecting children 1

primary order 2

proceedings 3

reasonable excuse for contravening 4

(2) In section 5(1) insert in alphabetical order: 5

case guardian — 7

(a) means a person appointed by a court under the 8

rules to manage and conduct a case for a child 9

or a person with a disability; and 10

(b) includes a next friend, guardian ad litem, tutor 11

or litigation guardian; 12

(FLA s. 4(1)) 13

child-related order — see section 205G(2); 14

(FLA s. 4(1)) 15

communicate — see section 236A(1); 16

(FLA s. 4(1)) 17

contravene, in relation to a child-related order — see 18

section 205C; 19

(FLA s. 4(1)) 20

conveyance includes a vehicle, a vessel and an aircraft; 21

(FLA s. 4(1)) 22

designated family report — see section 65AB; 23

(FLA s. 4(1)) 24

dwelling house includes a conveyance, or a room in 25

accommodation, in which people ordinarily retire for 26

the night; 27

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 5

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(FLA s. 4(1)) 1

family law practice and procedure provisions has the 2

meaning given by section 211C(4); 3

(FLA s. 4(1)) 4

family report writer — see section 65AA; 5

(FLA s. 4(1)) 6

Federal Circuit and Family Court of Australia means 7

the Federal Circuit and Family Court of Australia 8

(Division 1); 9

final parenting order includes a parenting order that is 10

an interlocutory order if the parenting order is not 11

expressed to be an order until further order; 12

(FLA s. 4(1)) 13

information sharing agency has the meaning given by 14

section 162C; 15

(FLA s. 4(1)) 16

information sharing safeguards has the meaning 17

given by section 162I(1); 18

(FLA s. 4(1)) 19

proceedings — 20

(a) means a proceeding in a court, whether 21

between parties or not, and includes 22

cross-proceedings or an incidental proceeding 23

in the course of or in connection with a 24

proceeding; and 25

(b) in Part 11A, includes a part of proceedings; 26

(FLA s. 4(1)) 27

protected material has the meaning given by 28

section 162F(3); 29

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 5

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(FLA s. 4(1)) 1

public — see section 236A(2); 2

(FLA s. 4(1)) 3

reasonable excuse, in relation to contravening a 4

child-related order, has a meaning affected by 5

section 205D; 6

(FLA s. 4(1)) 7

regulator — see section 65AC(2)(b); 8

(3) In section 5(1) in the definition of alleged contravention delete 10

“Division 6 Subdivision 4,” and insert: 11

Division 14 Subdivision 2, 13

(4) In section 5(1) in the definition of alleged offender delete 15

“Division 6 Subdivision 4,” and insert: 16

Division 14 Subdivision 2, 18

(5) In section 5(1) immediately before the definition of Part 5 20

Order delete “(FLA s. 4(1))”. 21

(6) In section 5(1) in the definition of relative: 22

(a) in paragraph (a)(vi) delete “child;” and insert: 23

child; or 25

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

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(b) after paragraph (a)(vi) insert: 1

(vii) for an Aboriginal child or Torres Strait 3

Islander child — a person who, in 4

accordance with the child’s Aboriginal 5

or Torres Strait Islander culture 6

(including but not limited to any kinship 7

systems of that culture), is related to the 8

child; 9

(b) in section 6(e) — has the meaning given by 13

section 7(1); and 14

section 7(2); 16

(7) In section 5(1) in the definition of step-parent paragraph (c) 18

after “marriage” insert: 19

or de facto relationship 21

6. Section 6 amended 23

(1) Delete section 6(b) and insert: 24

(b) section 66C(4)(a); and 26

(2) Delete section 6(e) and insert: 28

(e) the first person is or has been a relative of the 30

second person within the meaning of 31

section 7(1); or 32

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

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(ea) except for the purposes of sections 66F, 66HA 1

and 66HB — the first person is or has been a 2

relative of the second person within the 3

meaning of section 7(2); or 4

7. Section 7 amended 6

(1) In section 7: 7

(a) delete “For” and insert: 8

(1) For 10

(b) delete “section 6,” and insert: 12

section 6(e), 14

(2) At the end of section 7 insert: 16

(2) For the purposes of section 6(ea), if a person is related 18

to an Aboriginal or Torres Strait Islander child in 19

accordance with the child’s Aboriginal or Torres Strait 20

Islander culture (including but not limited to any 21

kinship systems of that culture), the person is a relative 22

of the child. 23

Note: The heading to amended section 7 is to read: 25

Meaning of relative — FLA s. 4(1AC) and (1AD) 26

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 8

page 9

8. Section 8 amended 1

In section 8 after “4,” insert: 2

4A, 4AA, 4B, 4C, 4

9. Section 24 amended 6

In section 24: 7

(a) delete “Family Court of Australia” (1st occurrence) and 8

insert: 9

Federal Circuit and Family Court of Australia 11

(b) in paragraph (a) delete “Family Court of Australia,” and 13

insert: 14

Federal Circuit and Family Court of Australia, 16

and insert: 19

Federal Circuit and Family Court of Australia; and 21

(d) in paragraph (c) delete “Family Court of Australia,” and 23

insert: 24

Federal Circuit and Family Court of Australia, 26

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 10

page 10

(e) in paragraph (c) delete “Family Court of Australia; and” 1

and insert: 2

Federal Circuit and Family Court of Australia; and 4

(f) in paragraph (d) delete “Family Court of Australia,” and 6

insert: 7

Federal Circuit and Family Court of Australia, 9

10. Section 33 amended 11

(1) Delete section 33(3) and insert: 12

(3) The following powers of the Court cannot be delegated 14

to a registrar — 15

(a) the power to make a divorce order in 16

proceedings that are defended; 17

(b) the power to make a decree of nullity of 18

marriage; 19

validity of — 21

(i) a marriage; or 22

(ii) a divorce; or 23

(iii) the annulment of a marriage; 24

(d) the power to make an excluded child order as 25

defined in subsection (4A); 26

(e) the power to make an order setting aside a 27

registered award under section 65Q or 65R. 28

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 11

page 11

(2) In section 33(4A) in the definition of excluded child order 1

before paragraph (c) insert: 2

(ba) an order made under section 205H; or 4

Note: The heading to amended section 33 is to read: 6

Delegation of powers to registrars — FCFCAA s. 98 7

11. Section 33B inserted 8

At the end of Part 2 Division 3 insert: 9

33B. Protection of registrars 11

(1) In conducting a conference relating to a matter relevant 12

to a proceeding, a registrar of the Court has the same 13

protection and immunity as a judge has in performing 14

the functions of a judge. 15

(2) This section does not limit any other protection or 16

immunity such a registrar has (in relation to such a 17

conference or otherwise). 18

12. Section 37 amended 20

In section 37(1)(a) delete “a man and a woman” and insert: 21

2 people 23

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 13

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13. Section 43 amended 1

(1) Delete section 43(1) and insert: 2

(1) This section applies if — 4

(a) proceedings for a parenting order (other than a 5

child maintenance order) or an order relating to 6

the welfare of a child are instituted in or 7

transferred to the Magistrates Court (the court); 8

and 9

(b) the court is not constituted by a family law 10

magistrate; and 11

which the proceedings were instituted, seeks an 13

order different from that sought in the 14

application. 15

(2) After section 43(3) insert: 17

(3A) Before transferring the proceedings, the court may 19

make such orders (including an order under 20

section 65K(1)) as it considers necessary pending the 21

disposal of the proceedings by the Court. 22

(3) Delete section 43(4a) and (4b). 24

(4) In section 43(7) and (8) delete “Magistrates Court” and insert: 25

court 27

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

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page 13

(5) Delete section 43(9). 1

Note: The heading to amended section 43 is to read: 2

Transfer of proceedings from Magistrates Court in parenting 3

cases 4

14. Section 43A amended 5

(1) In section 43A(1): 6

(a) in paragraph (a) delete “other” and insert: 7

higher 9

(b) in paragraph (a) after “instituted in” insert: 11

or transferred to 13

were 17

(2) In section 43A(4) after “instituted in” insert: 19

or transferred to 21

(3) In section 43A(7): 23

(a) delete “a court” and insert: 24

the Court 26

(b) delete “that court shall” and insert: 28

the Court must 30

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

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the Court. 3

(4) After section 43A(8) insert: 5

(9) Subsection (8) does not affect the duty of the court to 7

comply with this section. 8

Note: The heading to amended section 43A is to read: 10

Transfer of proceedings from Magistrates Court in cases in 11

relation to property — FLA s. 46 12

15. Section 43B inserted 13

After section 43A insert: 14

43B. Transfer of proceedings to the Court — 16

FLA s. 46(3A) 17

If proceedings under this Act are pending in the 18

Magistrates Court, and the Magistrates Court is not 19

constituted by a family law magistrate, the Court may, 20

on the application of a party or of its own motion, order 21

that the proceedings be removed to the Court. 22

16. Section 47 amended 24

In section 47 in the definition of family counselling: 25

(a) in paragraph (b)(ii) delete “children.” and insert: 26

children; 28

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 17

page 15

(b) after paragraph (b) insert: 1

or 3

parenting order under section 88 to deal with 5

issues relating to the care of children. 6

17. Section 51 amended 8

In section 51 in the definition of family dispute resolution 9

delete paragraph (a) and insert: 10

(a) in which a family dispute resolution 12

practitioner — 13

(i) helps people affected, or likely to be 14

affected, by the breakdown of a 15

relationship covered by this Act to 16

resolve some or all of their disputes 17

with each other; or 18

(ii) helps persons who may apply for a 19

parenting order under section 88 to 20

resolve some or all of their disputes 21

with each other relating to the care of 22

children; 23

and 24

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 18

page 16

18. Part 4 Division 4 inserted 1

At the end of Part 4 insert: 2

Division 4 — Post-separation parenting programs 4

59A. Admissibility of communications in post-separation 5

parenting programs — FLA s. 10PA 6

(1) Evidence of anything said, or of any admission made, 7

by a person attending a post-separation parenting 8

program is not admissible — 9

(a) in any court (whether of a kind referred to in 10

section 8(a) or (b) or otherwise); or 11

(b) in any proceedings before a person authorised 12

by a law of the Commonwealth, of a State or of 13

a Territory, or by the consent of the parties, to 14

hear evidence. 15

(2) Subsection (1) does not apply to an admission or 16

disclosure referred to in subsection (3) unless, in the 17

opinion of the court or person authorised to hear 18

evidence referred to in subsection (1), there is 19

sufficient evidence of the admission or disclosure 20

available to the court from other sources. 21

(3) For the purposes of subsection (2), the admissions and 22

disclosures are the following — 23

(a) an admission by an adult that indicates that a 24

child under 18 has been abused or is at risk of 25

abuse; 26

(b) a disclosure by a child under 18 that indicates 27

that the child has been abused or is at risk of 28

abuse. 29

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 19

page 17

19. Section 62 amended 1

Delete section 62(3) and insert: 2

(3) Despite subsection (2), a thing said or admission made 4

is admissible even if the person who said the thing or 5

made the admission had not been informed of the effect 6

of subsection (1), if — 7

(a) it is an admission by an adult that indicates that 8

a child who has not attained the age of 18 years 9

has been abused or is at risk of abuse; or 10

(b) it is a disclosure by a child who has not attained 11

the age of 18 years that indicates that a child 12

who has not attained the age of 18 years has 13

been abused or is at risk of abuse. 14

(4) Subsection (3) does not apply if, in the opinion of the 15

court, there is sufficient evidence of the admission or 16

disclosure available to the court from other sources. 17

20. Section 63 amended 19

(1) In section 63 delete “A family consultant has, in performing his 20

or her” and insert: 21

(1) A family consultant has, in performing their 23

(2) At the end of section 63 insert: 25

(2) However, if a family consultant is also a family report 27

writer, that protection and immunity — 28

(a) does not relieve the family consultant of their 29

obligations under regulations made for the 30

purposes of section 65AC; and 31

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 21

page 18

(b) does not extend to action taken to enforce such 1

regulations. 2

21. Part 4AA inserted 4

After section 65A insert: 5

Part 4AA — Family report writers 7

65AA. Family report writers — FLA s. 11H 8

Any individual who prepares a designated family 9

report is a family report writer. 10

65AB. Designated family reports — FLA s. 11J 11

(1) A report that relates to a child is a designated family 12

report if — 13

(a) the report is prepared following a family 14

assessment (which usually includes the report’s 15

preparer meeting with the child and others 16

significant to the child’s care, welfare and 17

development and, if appropriate, advising of the 18

child’s views); and 19

(b) the report sets out the expert views and advice 20

of the report’s preparer on parenting 21

arrangements for the purposes of parenting 22

orders being made by a court in relation to the 23

child; and 24

(i) covered by subsection (2); and 26

(ii) not excluded by regulations made for 27

the purposes of this paragraph. 28

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Family Court Act 1997 amended Part 2

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page 19

(2) This subsection covers the following reports — 1

(a) a report prepared for the court by a family 2

consultant in relation to an appointment (or a 3

series of appointments) a party to proceedings 4

has been directed to attend, or to arrange for a 5

child to attend, with the family consultant under 6

section 65; 7

(b) a report prepared by a family consultant at the 8

direction of the court under section 73(2); 9

independent children’s lawyer as mentioned in 11

section 166(2); 12

(d) any other report prepared for parties to 13

proceedings before a court, or for a court for 14

the purposes of proceedings before the court. 15

65AC. Regulations prescribing standards and 16

requirements for family report writers — 17

FLA s. 11K 18

(1) The regulations may make provision for, and in 19

relation to — 20

(a) standards and requirements that family report 21

writers, or a class or classes of family report 22

writers, must comply with in connection with 23

the role of preparing designated family reports; 24

and 25

(b) consequences of non-compliance with 26

prescribed standards and requirements. 27

(2) Without limiting subsection (1)(a), regulations made 28

for the purposes of that paragraph may deal with any or 29

all of the following matters — 30

(a) recognition, monitoring and enforcement of 31

compliance with prescribed standards and 32

requirements; 33

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Part 2 Family Court Act 1997 amended

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(b) the person or persons responsible for that 1

recognition, monitoring and enforcement (each 2

such person is a regulator); 3

intending to become family report writers, in 5

relation to establishing and maintaining 6

recognition of their compliance, including 7

duties in relation to providing information and 8

documents to a regulator; 9

(d) circumstances in which a regulator may collect, 10

use and share information and documents for 11

the purposes of meeting the regulator’s 12

responsibilities; 13

(e) review of decisions that affect recognition of a 14

family report writer’s compliance; 15

(f) processes for dealing with persons who make 16

false or misleading representations about a 17

family report writer’s compliance; 18

(g) processes for handling complaints involving 19

family report writers; 20

(h) training for family report writers; 21

(i) the charging of fees, to family report writers, 22

for services provided to them in connection 23

with recognition, and maintenance of 24

recognition, of their compliance; 25

(j) publication of the names of family report 26

writers who are recognised as complying with 27

prescribed standards and requirements; 28

(k) publication of information about the named 29

family report writers for the purposes of 30

informing the court, parties to proceedings and 31

the public about any or all of the following — 32

(i) their qualifications, training and 33

experience; 34

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Family Court Act 1997 amended Part 2

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(ii) their availability; 1

(iii) the fees they charge; 2

(iv) their compliance status, including in 3

relation to particular standards or 4

requirements; 5

(v) any relevant memberships of 6

professional associations, registration or 7

employment; 8

(vi) any other matters relevant to their role 9

of preparing designated family reports; 10

(l) standards and requirements in relation to the 11

content of designated family reports. 12

(3) Regulations dealing with the matter mentioned in 13

subsection (2)(k) must not require or allow the 14

publication of personal information (as defined in the 15

Privacy Act 1988 (Commonwealth) section 6(1)) about 16

any child or other individual to whom a report relates. 17

(4) Without limiting subsection (1)(b), regulations made 18

for the purposes of that paragraph may do any or all of 19

the following — 20

(a) prescribe offences, the penalties for which do 21

not exceed $9 390; 22

(b) provide for suspension or cancellation of 23

recognition of compliance; 24

recognised, or if recognition of a family report 26

writer’s compliance is suspended or cancelled, 27

a court must not have regard to designated 28

family reports prepared by the family report 29

writer; 30

(d) prohibit the preparation of designated family 31

reports by family report writers who are not 32

recognised. 33

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65AD. Disclosure by court to regulator — FLA s. 11L 1

A court may disclose any of the following to a 2

regulator, for the purposes of the regulator performing 3

the regulator’s functions under the regulations — 4

(a) a designated family report prepared for or at the 5

direction of the court, or for a party to 6

proceedings before the court; 7

(b) a final order made by the court in proceedings 8

for which a designated family report was 9

prepared. 10

65AE. Immunity of regulator — FLA s. 11M 11

A regulator is not liable in civil or criminal proceedings 12

for or in relation to anything done or omitted to be 13

done, in good faith, in the performance or exercise, or 14

purported performance or exercise, of the regulator’s 15

functions or powers under regulations made for the 16

purposes of section 65AC. 17

22. Section 65G amended 19

In section 65G(1): 20

(a) in paragraph (b) delete “65D.” and insert: 21

65D; and 23

(b) after paragraph (b) insert: 25

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 23

page 23

23. Part 5 Division 1 Subdivision 1 heading amended 1

In the heading to Part 5 Division 1 Subdivision 1 delete “and 2

principles”. 3

24. Section 66 replaced 4

Delete section 66 and insert: 5

66. Objects of Part — FLA s. 60B 7

The objects of this Part are — 8

(a) to ensure that the best interests of children are 9

met, including by ensuring their safety; and 10

(b) to give effect to the Convention on the Rights 11

of the Child done at New York on 12

20 November 1989 as ratified by Australia at 13

17 December 1990. 14

Note for this section: 15

The text of the Convention is set out in Australian Treaty 16

Series 1991 No. 4 ([1991] ATS 4). In 2024, the text of the 17

Convention in the Australian Treaty Series was accessible 18

through the Australian Treaties Library on the AustLII 19

website (www.austlii.edu.au). 20

25. Section 66C replaced 22

Delete section 66C and insert: 23

66C. How a court determines what is in child’s best 25

interests — FLA s. 60CC 26

(1) Subject to subsection (4), in determining what is in the 27

child’s best interests, the court must — 28

(a) consider the matters set out in subsection (2); 29

and 30

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(b) if the child is an Aboriginal or Torres Strait 1

Islander child — also consider the matters set 2

out in subsection (4). 3

(2) For the purposes of subsection (1)(a), the court must 4

consider the following matters — 5

(a) what arrangements would promote the safety 6

(including safety from being subjected to, or 7

exposed to, family violence, abuse, neglect, or 8

other harm) of — 9

(i) the child; and 10

(ii) each person who has care of the child 11

(whether or not a person has parental 12

responsibility for the child); 13

(b) any views expressed by the child; 14

and cultural needs of the child; 16

(d) the capacity of each person who has or is 17

proposed to have parental responsibility for the 18

child to provide for the child’s developmental, 19

psychological, emotional and cultural needs; 20

(e) the benefit to the child of being able to have a 21

relationship with the child’s parents, and other 22

people who are significant to the child, where it 23

is safe to do so; 24

(f) anything else that is relevant to the particular 25

circumstances of the child. 26

(3) In considering the matters set out in subsection (2)(a), 27

the court must include consideration of — 28

(a) any history of family violence, abuse or neglect 29

involving the child or a person caring for the 30

child (whether or not the person had parental 31

responsibility for the child); and 32

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page 25

(b) any family violence order that applies or has 1

applied to the child or a member of the child’s 2

family. 3

(4) For the purposes of subsection (1)(b), the court must 4

consider the following matters — 5

(a) the child’s right to enjoy the child’s Aboriginal 6

or Torres Strait Islander culture, by having the 7

support, opportunity and encouragement 8

necessary — 9

(i) to connect with, and maintain their 10

connection with, members of their 11

family and with their community, 12

culture, country and language; and 13

(ii) to explore the full extent of that culture, 14

consistent with the child’s age and 15

developmental level and the child’s 16

views; and 17

(iii) to develop a positive appreciation of 18

that culture; 19

(b) the likely impact any proposed parenting order 20

under this Part will have on that right. 21

(5) If the court is considering whether to make an order 22

with the consent of all the parties to the proceedings, 23

the court may, but is not required to, have regard to all 24

or any of the matters set out in subsection (2) or (4). 25

26. Section 66D amended 27

In section 66D(1) delete “66C(3)(a)” and insert: 28

66C(2)(b) 30

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Part 2 Family Court Act 1997 amended

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27. Section 66HB amended 1

(1) Delete section 66HB(1). 2

(2) In section 66HB(2): 3

(a) in paragraph (a)(i) delete “a prescribed government 4

agency; or” and insert: 5

an information sharing agency; or 7

(b) in paragraph (a)(ii) delete “a prescribed government 9

agency;” and insert: 10

an information sharing agency; 12

(3) In section 66HB(3): 14

(a) in paragraph (a)(i) delete “a prescribed government 15

agency; or” and insert: 16

an information sharing agency; or 18

(b) in paragraph (a)(ii) delete “a prescribed government 20

agency;” and insert: 21

an information sharing agency; 23

Note: The heading to amended section 66HB is to read: 25

Informing court of notifications to, and investigations by, 26

information sharing agencies — FLA s. 60CI 27

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 28

page 27

28. Section 66HC amended 1

Delete section 66HC(2)(b) and insert: 2

(b) encourage the person to act in the child’s best 4

interests by applying the considerations set out 5

in section 66C(2) and (4). 6

29. Section 66H amended 8

(1) Delete sections 66H(1), (3), (4) and (5). 9

(2) In section 66H(7): 10

(a) in paragraph (d) delete “issues.” and insert: 11

issues; 13

(b) after paragraph (d) insert: 15

(e) a certificate to the effect that the person began 17

attending family dispute resolution with the 18

practitioner and the other party or parties to the 19

proceedings in relation to the issue or issues 20

that the order would deal with, but that the 21

practitioner considers, having regard to the 22

matters prescribed by the regulations for the 23

purposes of this paragraph, that it would not be 24

appropriate to continue the family dispute 25

resolution. 26

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Part 2 Family Court Act 1997 amended

s. 30

page 28

30. Section 66I amended 1

(1) Delete section 66I(1) and insert: 2

(1) Subsection (1A) applies if — 4

(a) an application is made for a Part 5 Order in 5

relation to a child; and 6

(b) section 66H(6) does not apply to the application 7

because the court is satisfied that there are 8

reasonable grounds to believe that — 9

(i) there has been abuse of the child by one 10

of the parties to the proceedings; or 11

(ii) there has been family violence by one of 12

the parties to the proceedings. 13

(1A) A court must not hear the application unless the 14

applicant has indicated in writing that the applicant has 15

received information from a family counsellor or 16

family dispute resolution practitioner about the services 17

and options (including alternatives to court action) 18

available in circumstances of abuse or violence. 19

(2) In section 66I(2) delete “(1)” and insert: 21

(1A) 23

(3) Delete section 66I(3) and insert: 25

(3) A failure to comply with subsection (1A) in relation to 27

proceedings on an application for a Part 5 Order does 28

not affect the validity of — 29

(a) those proceedings; or 30

Family Court Amendment (Commonwealth Reforms) Bill 2024

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s. 31

page 29

(b) any order made in those proceedings. 1

31. Section 69A inserted 3

After section 69 insert: 4

69A. Consultation between parents on major long-term 6

issues — FLA s. 61CA 7

If it is safe to do so, and subject to any court orders, the 8

parents of a child who is not yet 18 are encouraged — 9

(a) to consult each other about major long-term 10

issues in relation to the child; and 11

(b) in doing so, to have regard to the best interests 12

of the child as the paramount consideration. 13

32. Section 70 amended 15

After section 70(2) insert: 16

(3) A parenting order that deals with the allocation of 18

responsibility for making decisions about major 19

long-term issues in relation to the child may provide 20

for joint or sole decision-making in relation to all or 21

specified major long-term issues. 22

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 33

page 30

33. Sections 70A and 70B replaced 1

Delete sections 70A and 70B and insert: 2

70A. Effect of parenting order that provides for joint 4

decision-making about major long-term issues — 5

FLA s. 61DAA 6

(1) If a parenting order provides for joint decision-making 7

by persons in relation to all or specified major 8

long-term issues in relation to a child, then, except to 9

the extent the order otherwise specifies, the order is 10

taken to require each of the persons — 11

(a) to consult each other person in relation to each 12

such decision; and 13

(b) to make a genuine effort to come to a joint 14

decision. 15

(2) To avoid doubt, this section does not require any other 16

person to establish, before acting on a decision about 17

the child communicated by one of those persons, that 18

the decision has been made jointly. 19

70B. No need to consult on issues that are not major 20

long-term issues — FLA s. 61DAB 21

(1) If a child is spending time with a person at a particular 22

time under a parenting order, the order is taken not to 23

require the person to consult a person to whom 24

subsection (2) applies about decisions that are made in 25

relation to the child during that time on issues that are 26

not major long-term issues. 27

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 34

page 31

(2) For the purposes of subsection (1), this subsection 1

applies to a person who — 2

(a) has parental responsibility for the child; or 3

(b) shares parental responsibility for the child with 4

another person. 5

(3) Subsection (1) applies subject to any provision to the 6

contrary made by a parenting order. 7

34. Section 78A amended 9

(1) Delete section 78A(2)(a) and (b). 10

(2) Delete section 78A(3) and (4). 11

35. Section 86 amended 12

Delete section 86(1)(b) and (c). 13

36. Section 89 amended 14

(1) In section 89(1) delete “sections 70A and” and insert: 15

section 17

(2) In section 89(2) delete “section 70A and”. 19

(3) Delete section 89(3). 20

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 37

page 32

37. Section 89AAA inserted 1

After section 89 insert: 2

89AAA. Reconsideration of final parenting orders — 4

FLA s. 65DAAA 5

(1) If a final parenting order is in force in relation to a 6

child, a court must not reconsider the final parenting 7

order unless — 8

(a) the court has considered whether there has been 9

a significant change of circumstances since the 10

final parenting order was made; and 11

(b) the court is satisfied that, in all the 12

circumstances (and taking into account whether 13

there has been a significant change of 14

circumstances since the final parenting order 15

was made), it is in the best interests of the child 16

for the final parenting order to be reconsidered. 17

(2) For the purposes of determining whether the court is 18

satisfied as mentioned in subsection (1)(b), and without 19

limiting section 66C, the court may have regard to any 20

matters that the court considers relevant, including the 21

following — 22

(a) the reasons for the final parenting order and the 23

material on which it was based; 24

(b) whether there is any material available that was 25

not available to the court that made the final 26

parenting order; 27

reconsidered, the court will make a new 29

parenting order that affects the operation of the 30

final parenting order in a significant way 31

(whether by varying, discharging or suspending 32

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

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page 33

the final parenting order, in whole or in part, or 1

in some other way); 2

(d) any potential benefit, or detriment, to the child 3

that might result from reconsidering the final 4

parenting order. 5

(3) Despite subsection (1), the court may reconsider a final 6

parenting order with the agreement or consent of all the 7

parties to that order. 8

(4) The failure of a court to comply with subsection (1) 9

does not affect the validity of any order made by the 10

court. 11

38. Section 89AA deleted 13

Delete section 89AA. 14

39. Sections 89AC and 89AD deleted 15

Delete sections 89AC and 89AD. 16

40. Section 91 amended 17

Delete section 91(4). 18

41. Part 5 Division 6 Subdivisions 3 and 4 deleted 19

Delete Part 5 Division 6 Subdivisions 3 and 4. 20

42. Section 106 amended 21

In section 106(2): 22

(a) delete “108” and insert: 23

108, 108A 25

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 43

page 34

(b) delete “107” and insert: 1

107, 107A 3

43. Sections 107 and 108 replaced 5

Delete sections 107 and 108 and insert: 6

107. Obligations if certain parenting orders have been 8

made: taking or sending child outside Australia — 9

FLA s. 65Y 10

(1) A person commits a crime if — 11

(a) a parenting order to which this Subdivision 12

applies is in force in relation to a child; and 13

(b) the person intentionally or recklessly takes or 14

sends, or attempts to take or send, the child 15

from the State to a place outside Australia; and 16

taken or sent, from the State to a place outside 18

Australia — 19

(i) with the consent in writing 20

(authenticated as prescribed) of each 21

person in whose favour the parenting 22

order was made; or 23

(ii) in accordance with an order of a court 24

(whether of a kind referred to in 25

section 8(a) or (b) or otherwise) made, 26

under this Part, under the Family Law 27

Act Part VII or under a law of any other 28

State or a Territory, at the time of, or 29

after, the making of the parenting order; 30

and 31

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Family Court Act 1997 amended Part 2

s. 43

page 35

(d) the person — 1

(i) is or was a party to the proceedings in 2

which the parenting order was made; or 3

(ii) is acting on behalf of, or at the request 4

of, a person who is or was a party to the 5

proceedings in which the parenting 6

order was made. 7

Penalty for this subsection: imprisonment for 3 years 8

and a fine of $56 340. 9

Summary conviction penalty for this subsection: 10

imprisonment for 18 months and a fine of $28 170. 11

(2) Subsection (1) does not apply if — 12

(a) the person (whether or not the person is or was 13

the party to the proceedings) takes or sends, or 14

attempts to take or send, the child from the 15

State to a place outside Australia because the 16

person believes the conduct is necessary to 17

prevent family violence; and 18

(b) the conduct is reasonable in the circumstances 19

as the person perceives them. 20

107A. Obligations if certain parenting orders have been 21

made: retaining child outside Australia — 22

FLA s. 65YA 23

(1) A person commits a crime if — 24

(a) a parenting order to which this Subdivision 25

applies is in force in relation to a child; and 26

(b) the child has been taken or sent from the State 27

to a place outside Australia, by or on behalf of a 28

party to the proceedings in which the parenting 29

order was made — 30

(i) with the consent in writing 31

(authenticated as prescribed) of each 32

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 43

page 36

person in whose favour the parenting 1

order was made; or 2

(ii) in accordance with an order of a court 3

(whether of a kind referred to in 4

section 8(a) or (b) or otherwise) made, 5

under this Part, under the Family Law 6

Act Part VII or under a law of any other 7

State or a Territory, at the time, or after, 8

the parenting order was made; 9

and 10

attempts to retain, the child outside Australia 12

otherwise than in accordance with a consent or 13

order of a kind mentioned in paragraph (b) 14

(whether or not the person took or sent the child 15

as mentioned in that paragraph); and 16

(d) the person — 17

(i) was a party to the proceedings in which 18

the parenting order was made; or 19

(ii) is retaining, or attempting to retain, the 20

child on behalf of, or at the request of, 21

such a party. 22

Penalty for this subsection: imprisonment for 3 years 23

and a fine of $56 340. 24

Summary conviction penalty for this subsection: 25

imprisonment for 18 months and a fine of $28 170. 26

(2) Subsection (1) does not apply if — 27

(a) the person (whether or not the person was the 28

party to the proceedings) retains, or attempts to 29

retain, the child as mentioned in 30

subsection (1)(c) because the person believes 31

the conduct is necessary to prevent family 32

violence; and 33

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Family Court Act 1997 amended Part 2

s. 43

page 37

(b) the conduct is reasonable in the circumstances 1

as the person perceives them. 2

108. Obligations if proceedings for the making of certain 3

parenting orders are pending: taking or sending 4

child outside Australia — FLA s. 65Z 5

(1) A person commits a crime if — 6

(a) proceedings (the Part 5 proceedings) are 7

pending for the making of a parenting order to 8

which this Subdivision applies in relation to a 9

child; and 10

(b) the person intentionally or recklessly takes or 11

sends, or attempts to take or send, the child 12

from the State to a place outside Australia; and 13

taken or sent, from the State to a place outside 15

Australia — 16

(i) with the consent in writing 17

(authenticated as prescribed) of each 18

other party to the Part 5 proceedings; or 19

(ii) in accordance with an order of a court 20

(whether of a kind referred to in 21

section 8(a) or (b) or otherwise) made, 22

under this Part, under the Family Law 23

Act Part VII or under a law of any other 24

State or a Territory, after the institution 25

of the Part 5 proceedings; 26

and 27

(d) the person is — 28

(i) a party to the Part 5 proceedings; or 29

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Part 2 Family Court Act 1997 amended

s. 43

page 38

(ii) acting on behalf of, or at the request of, 1

a person who is a party to the Part 5 2

proceedings. 3

Penalty for this subsection: imprisonment for 3 years 4

and a fine of $56 340. 5

Summary conviction penalty for this subsection: 6

imprisonment for 18 months and a fine of $28 170. 7

(2) Subsection (1) does not apply if — 8

(a) the person (whether or not the person is the 9

party to the Part 5 proceedings) takes or sends, 10

or attempts to take or send, the child from the 11

State to a place outside Australia because the 12

person believes the conduct is necessary to 13

prevent family violence; and 14

(b) the conduct is reasonable in the circumstances 15

as the person perceives them. 16

108A. Obligations if proceedings for the making of certain 17

parenting orders are pending: retaining child 18

outside Australia — FLA s. 65ZAA 19

(1) A person commits a crime if — 20

(a) proceedings (the Part 5 proceedings) for the 21

making, in relation to a child, of a parenting 22

order to which this Subdivision applies are 23

pending; and 24

(b) the child has been taken or sent from the State 25

to a place outside Australia by or on behalf of a 26

party to the Part 5 proceedings — 27

(i) with the consent in writing 28

(authenticated as prescribed) of each 29

other party to the Part 5 proceedings; or 30

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Family Court Act 1997 amended Part 2

s. 43

page 39

(ii) in accordance with an order of a court 1

(whether of a kind referred to in 2

section 8(a) or (b) or otherwise) made, 3

under this Part, under the Family Law 4

Act Part VII or under a law of any other 5

State or a Territory, after the institution 6

of the Part 5 proceedings; 7

and 8

attempts to retain, the child outside Australia 10

otherwise than in accordance with a consent or 11

order of a kind mentioned in paragraph (b) 12

(whether or not the person took or sent the child 13

as mentioned in that paragraph); and 14

(d) the person is a party to the Part 5 proceedings, 15

or is retaining, or attempting to retain, the child 16

on behalf of, or at the request of, such a party. 17

Penalty for this subsection: imprisonment for 3 years 18

and a fine of $56 340. 19

Summary conviction penalty for this subsection: 20

imprisonment for 18 months and a fine of $28 170. 21

(2) Subsection (1) does not apply if — 22

(a) the person (whether or not the person is the 23

party to the Part 5 proceedings) retains, or 24

attempts to retain, the child as mentioned in 25

subsection (1)(c) because the person believes 26

the conduct is necessary to prevent family 27

violence; and 28

(b) the conduct is reasonable in the circumstances 29

as the person perceives them. 30

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 44

page 40

44. Section 109 amended 1

(1) Delete section 109(1) to (3) and insert: 2

(1) A person (the first person) commits an offence if — 4

(a) a parenting order to which this Subdivision 5

applies is in force in relation to a child; and 6

(b) the first person is a captain, owner or charterer 7

of an aircraft or vessel; and 8

parenting order was made has served on the 10

first person a statutory declaration that — 11

(i) relates to the parenting order; and 12

(ii) complies with subsection (4); 13

and 14

(d) the statutory declaration was made by the carer 15

not earlier than 7 days before the date of 16

service; and 17

(e) the first person intentionally or recklessly, and 18

without reasonable excuse, permits the child to 19

leave a place in the State in the aircraft or 20

vessel; and 21

(f) the destination of the aircraft or vessel is 22

outside Australia; and 23

(g) the child does not leave — 24

(i) in the company, or with the consent in 25

writing (authenticated as prescribed), of 26

the carer; or 27

(ii) in accordance with an order of a court 28

(whether of a kind referred to in 29

section 8(a) or (b) or otherwise) made, 30

under this Part, under the Family Law 31

Act Part VII or under a law of any other 32

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Family Court Act 1997 amended Part 2

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page 41

State or a Territory, at the time of, or 1

after, the making of the parenting order. 2

Penalty for this subsection: a fine of $18 780. 3

(2) In section 109(4) delete “A statutory declaration referred to in 5

subsection (1)(b)” and insert: 6

The statutory declaration 8

45. Section 110 amended 10

(1) Delete section 110(1) to (3) and insert: 11

(1) A person (the first person) commits an offence if — 13

(a) proceedings (the Part 5 proceedings) are 14

pending for the making of a parenting order to 15

which this Subdivision applies in relation to a 16

child; and 17

(b) the first person is a captain, owner or charterer 18

of an aircraft or vessel; and 19

served on the captain, owner or charterer a 21

statutory declaration that — 22

(i) relates to the Part 5 proceedings; and 23

(ii) complies with subsection (4); 24

and 25

(d) the statutory declaration was made by the carer 26

not earlier than 7 days before the date of 27

service; and 28

(e) the first person intentionally or recklessly, and 29

without reasonable excuse, permits the child to 30

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leave a place in the State in the aircraft or 1

vessel; and 2

(f) the destination of the aircraft or vessel is 3

outside Australia; and 4

(g) the child does not leave — 5

(i) in the company, or with the consent in 6

writing (authenticated as prescribed), of 7

the carer; or 8

(ii) in accordance with an order of a court 9

(whether of a kind referred to in 10

section 8(a) or (b) or otherwise) made, 11

under this Part, under the Family Law 12

Act Part VII or under a law of any other 13

State or a Territory, after the institution 14

of the Part 5 proceedings. 15

Penalty for this subsection: a fine of $18 780. 16

(2) In section 110(4): 18

(a) delete “A statutory declaration referred to in 19

subsection (1)(b)” and insert: 20

The statutory declaration 22

(b) in paragraph (a) delete “relevant proceedings referred to 24

in subsection (1)(a),” and insert: 25

Part 5 proceedings, 27

subsection (1)(a)” and insert: 30

Part 5 proceedings 32

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46. Section 111 amended 1

In section 111(1) delete “109(1)(b) or 110(1)(b)” and insert: 2

109 or 110 4

47. Section 133 amended 6

In section 133 after paragraph (c) insert: 7

(ca) orders for information in child-related 9

proceedings (Subdivision 4A); and 10

48. Section 160 amended 12

In section 160(1): 13

(a) in paragraph (f) delete “interests.” and insert: 14

interests; or 16

(b) after paragraph (f) insert: 18

(g) a family report writer who is recognised, in 20

accordance with regulations made for the 21

purposes of section 65AC, as complying with 22

prescribed standards and requirements. 23

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49. Section 162B amended 1

In section 162B(4) delete “202K to obtain documents or 2

information from prescribed government agencies” and insert: 3

162D or 162E to obtain particulars, documents or information 5

from information sharing agencies 6

50. Part 5 Division 8 Subdivision 4A inserted 8

After Part 5 Division 8 Subdivision 4 insert: 9

Subdivision 4A — Orders for information in child-related 11

proceedings 12

162C. Meaning of information sharing agency — 13

FLA s. 67ZBC 14

If the regulations prescribe an agency of a State or 15

Territory, a part of such an agency, or a part of a 16

Commonwealth agency that provides services on 17

behalf of a State or Territory, for the purposes of this 18

section, the prescribed agency, or prescribed part, is an 19

information sharing agency. 20

162D. Order to provide particulars of documents or 21

information relating to certain matters — 22

FLA s. 67ZBD 23

(1) A court may make an order, in child-related 24

proceedings, requiring an information sharing agency 25

to — 26

(a) inform the court whether the agency has in its 27

possession or control any documents or 28

information relating to a matter mentioned in 29

subsection (2); and 30

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(b) if it has — give the court particulars of the 1

documents or information. 2

(2) The matters are the following — 3

(a) abuse, neglect or family violence to which a 4

child to whom the proceedings relate has been, 5

or is suspected to have been, subjected or 6

exposed; 7

(b) family violence to which a party to the 8

proceedings has been exposed, or in which a 9

party to the proceedings has engaged, to the 10

extent it may affect a child to whom the 11

proceedings relate; 12

proceedings relate being subjected or exposed 14

to abuse, neglect or family violence; 15

(d) any risk or potential risk of a party to the 16

proceedings being subjected to, or engaging in, 17

family violence, to the extent any such family 18

violence may affect a child to whom the 19

proceedings relate. 20

(3) The order may (but is not required to) include 21

descriptions of the kinds of documents or information 22

that the court considers the agency may have in its 23

possession or control relating to a matter mentioned in 24

subsection (2). 25

(4) Any descriptions mentioned in subsection (3) do not 26

limit the scope of the order. 27

(5) The following are examples of descriptions of kinds of 28

documents or information that may be included in an 29

order — 30

(a) notifications to the agency of suspected abuse 31

of a child to whom the proceedings relate; 32

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(b) notifications to the agency of suspected abuse, 1

by a party to the proceedings, of any child. 2

(6) The agency may, on its own initiative — 3

(a) produce to the court any documents the 4

particulars of which are required by the order; 5

or 6

(b) give to the court any information the particulars 7

of which are required by the order; or 8

agency considers useful to characterise 10

documents or information particulars of which 11

are required by the order. 12

(7) If the agency produces a document or gives 13

information or particulars on its own initiative under 14

subsection (6), the agency must consider — 15

(a) redacting the document if the document 16

contains protected material; or 17

(b) not providing the information or particulars to 18

the extent that the information is, or the 19

particulars would reveal, protected material. 20

(8) A written law has no effect to the extent that it would, 21

apart from this subsection, hinder or prevent the 22

agency — 23

(a) complying with the order; or 24

(b) providing documents, information or particulars 25

on its own initiative under subsection (6). 26

162E. Order to provide documents or information relating 27

to certain matters — FLA s. 67ZBE 28

(1) A court may make an order, in child-related 29

proceedings, requiring an information sharing agency 30

to produce to the court any documents, and give the 31

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Family Court Act 1997 amended Part 2

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court any information, in the agency’s possession or 1

control relating to a matter mentioned in subsection (2). 2

(2) The matters are the following — 3

(a) abuse, neglect or family violence to which a 4

child to whom the proceedings relate has been, 5

or is suspected to have been, subjected or 6

exposed; 7

(b) family violence to which a party to the 8

proceedings has been exposed, or in which a 9

party to the proceedings has engaged, to the 10

extent it may affect a child to whom the 11

proceedings relate; 12

proceedings relate being subjected or exposed 14

to abuse, neglect or family violence; 15

(d) any risk or potential risk of a party to the 16

proceedings being subjected to, or engaging in, 17

family violence, to the extent any such family 18

violence may affect a child to whom the 19

proceedings relate. 20

(3) The order may (but is not required to) include 21

descriptions of the kinds of documents or information 22

that the court considers the agency may have in its 23

possession or control relating to a matter mentioned in 24

subsection (2). 25

(4) Any descriptions mentioned in subsection (3) do not 26

limit the scope of the order. 27

(5) The following are examples of descriptions of kinds of 28

documents or information that may be included in an 29

order — 30

(a) notifications to the agency of suspected abuse 31

of a child to whom the proceedings relate; 32

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Part 2 Family Court Act 1997 amended

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(b) notifications to the agency of suspected abuse, 1

by a party to the proceedings, of any other 2

child. 3

(6) The agency may, on its own initiative — 4

(a) produce to the court other documents, or give 5

the court other information, in the agency’s 6

possession or control that, in the agency’s 7

opinion, relates to a matter mentioned in 8

subsection (2); or 9

(b) give to the court particulars of those other 10

documents or information. 11

(7) If the agency produces a document or gives 12

information or particulars on its own initiative under 13

subsection (6), the agency must consider — 14

(a) redacting the document if the document 15

contains protected material; or 16

(b) not providing the information or particulars to 17

the extent that the information is, or the 18

particulars would reveal, protected material. 19

(8) A written law has no effect to the extent that it would, 20

apart from this subsection, hinder or prevent the 21

agency — 22

(a) complying with the order; or 23

(b) providing documents, information or particulars 24

on its own initiative under subsection (6). 25

162F. Disclosure of protected material — FLA s. 67ZBF 26

(1) An order made under section 162D or 162E does not 27

require, but allows, an information sharing agency 28

to — 29

(a) give the court particulars of a document or 30

information, to the extent that the particulars 31

would reveal protected material; or 32

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(b) produce a document to the court, to the extent 1

that the document contains protected material; 2

or 3

material. 5

(2) If the agency does not give the court particulars or 6

information, or does not produce a document, on the 7

grounds that the particulars would reveal, or the 8

document contains or the information is, protected 9

material, the agency must inform the court — 10

(a) that the agency has not provided, or, that in the 11

agency’s opinion it is not required to provide, 12

certain particulars, documents or information; 13

and 14

(b) in the agency’s opinion, which of 15

subsections (3)(a) to (c) apply to the particulars, 16

document or information. 17

(3) Protected material is information — 18

(a) that is the subject of legal professional 19

privilege; or 20

(b) that discloses, or would enable a person to 21

ascertain, the identity of a person who 22

communicated information to the agency in 23

confidence; or 24

(i) endanger a person’s life or present an 26

unreasonable risk of harm to a person; 27

or 28

(ii) prejudice legal proceedings (including 29

proceedings in a tribunal and a coronial 30

inquiry, investigation and inquest); or 31

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(iii) contravene a court order or law that, 1

disregarding sections 162D(8) 2

and 162E(8), would restrict the 3

publication or other disclosure of 4

information in connection with legal 5

proceedings; or 6

(iv) be contrary to the public interest. 7

162G. Advice to court about risk of disclosure — 8

FLA s. 67ZBG 9

(1) This section applies if, under an order made under 10

section 162D or 162E, or under section 162D(6) 11

or 162E(6), an information sharing agency — 12

(a) gives the court particulars of a document or 13

information; or 14

(b) produces documents to the court; or 15

(2) The agency must advise the court about any risks the 17

court should consider when disclosing the particulars, 18

documents or information, including any risk to — 19

(a) a party to the proceedings; or 20

(b) a child to whom the proceedings relate; or 21

agency in confidence; or 23

(d) any other person. 24

162H. Admission of particulars, documents or information 25

into evidence — FLA s. 67ZBH 26

(1) The court must admit into evidence any particulars, 27

documents or information provided under an order 28

made under section 162D or 162E, or under 29

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Family Court Act 1997 amended Part 2

s. 50

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section 162D(6) or 162E(6), on which the court intends 1

to rely. 2

(2) Subsection (3) applies if a particular, a document or 3

information is or relates to — 4

(a) a notification to the agency of suspected child 5

abuse or family violence; or 6

(b) an assessment by the agency of investigations 7

into a notification of that kind or the findings or 8

outcomes of those investigations; or 9

course of investigating a notification of that 11

kind. 12

(3) Despite subsection (1), the court must not disclose the 13

identity of the person (the notifier) who made the 14

notification, or information that could identify the 15

notifier, unless — 16

(a) the notifier consents to the disclosure; or 17

(b) the notifier is a party to the proceedings; or 18

or information that could identify the notifier, is 20

critically important to the proceedings and that 21

failure to make the disclosure would prejudice 22

the proper administration of justice. 23

(4) Before making a disclosure for the reasons set out in 24

subsection (3)(b) or (c), the court must — 25

(a) ensure that the agency is notified about the 26

intended disclosure and given an opportunity to 27

respond; and 28

(b) have regard to any advice given to the court 29

under section 162G. 30

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Part 2 Family Court Act 1997 amended

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(5) The court is not required to admit into evidence any 1

particulars, documents or information that the court 2

only intends to rely on to assist in case management. 3

162I. Information sharing agencies and court must have 4

regard to information sharing safeguards — 5

FLA s. 67ZBI 6

(1) An information sharing agency must, when providing 7

particulars, documents or information under an order 8

made under section 162D or 162E, or under 9

section 162D(6) or 162E(6), have regard to the matters 10

prescribed by the regulations for the purposes of this 11

subsection (the information sharing safeguards). 12

(2) The court must have regard to the information sharing 13

safeguards when using particulars, documents or 14

information provided by an information sharing agency 15

under an order made under section 162D or 162E, or 16

under section 162D(6) or 162E(6). 17

(3) For the purposes of subsection (2), use includes handle, 18

store and access. 19

162J. When orders may be made — FLA s. 67ZBJ 20

(1) A court may make an order under section 162D 21

or 162E at any time after the commencement of 22

child-related proceedings and before making final 23

orders. 24

(2) A court may make an order under section 162E in 25

relation to an information sharing agency without first 26

making an order under section 162D in relation to that 27

agency. 28

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Family Court Act 1997 amended Part 2

s. 51

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162K. Subpoena in respect of certain documents or 1

information — FLA s. 67ZBK 2

If an order has been made under section 162E in the 3

course of child-related proceedings requiring an 4

information sharing agency to provide documents or 5

information, a party to those proceedings must not, 6

without the court’s permission, request the issue of a 7

subpoena requiring that agency to provide documents 8

or information in relation to those proceedings. 9

51. Section 163 replaced 11

Delete section 163 and insert: 12

163. Orders for delivery of travel documents — 14

FLA s. 67ZD 15

If a court having jurisdiction under this Part considers 16

that there is a possibility or threat that a child may be 17

removed from Australia, it may order that the 18

following documents be ordered up to the court on 19

such conditions as the court considers appropriate — 20

(a) any Australian travel document (as defined in 21

the Australian Passports Act 2005 22

(Commonwealth) section 6(1)) that has been 23

issued to the child or any other person 24

concerned; 25

(b) any passport or other travel document that has 26

been issued to the child or any other person 27

concerned by or on behalf of the government of 28

a foreign country. 29

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Part 2 Family Court Act 1997 amended

s. 52

page 54

52. Section 164 amended 1

Delete section 164(4) and (5). 2

53. Section 165 amended 3

After section 165(5) insert: 4

(5A) Subject to subsection (5C), the independent children’s 6

lawyer must perform the following duties (not 7

necessarily at the same time) — 8

(a) meet with the child; 9

(b) provide the child with an opportunity to express 10

any views in relation to the matters to which the 11

proceedings relate. 12

(5B) The independent children’s lawyer has discretion in 13

relation to the following matters (subject to any order 14

or direction of the court with respect to the matter, for 15

example under section 164(2)(b) or subsection (5E)(b) 16

of this section) — 17

(a) when, how often and how meetings with the 18

child take place; 19

(b) when, how often and how the child is provided 20

with an opportunity to express views. 21

(5C) The independent children’s lawyer is not required to 22

perform a duty if — 23

(a) the child is under 5 years of age; or 24

(b) the child does not want to meet with the 25

independent children’s lawyer, or express their 26

views (as the case requires); or 27

not performing the duty. 29

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Family Court Act 1997 amended Part 2

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page 55

(5D) Without limiting subsection (5C)(c), exceptional 1

circumstances for the purposes of that paragraph 2

include that performing the duty would — 3

(a) expose the child to a risk of physical or 4

psychological harm that cannot be safely 5

managed; or 6

(b) have a significant adverse effect on the 7

wellbeing of the child. 8

(5E) If the independent children’s lawyer proposes not to 9

perform a duty because of subsection (5C)(c), the court 10

must do the following before making final orders — 11

(a) determine whether it is satisfied that 12

exceptional circumstances exist that justify not 13

performing the duty; 14

(b) if the court determines that those circumstances 15

do not exist — make an order requiring the 16

independent children’s lawyer to meet with the 17

child or provide the child with an opportunity 18

to express their views (as the case requires). 19

54. Section 173 amended 21

In section 173(c) delete “and principles”. 22

55. Section 174 amended 23

(1) After section 174(2) insert: 24

(2A) Subsection (2)(c)(iii) does not apply to a child if the 26

court is satisfied that it is in the child’s best interests 27

not to receive an explanation of the order or injunction. 28

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Part 2 Family Court Act 1997 amended

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(2B) Subsection (2)(d) does not require inclusion of a matter 1

in an explanation given to a child if the court is 2

satisfied that it is in the child’s best interests for the 3

matter not to be included in the explanation. 4

(2) After section 174(3) insert: 6

(3A) Subsection (3)(c) does not require the court to give a 8

copy of the order or injunction to a child if the court is 9

satisfied that it is in the child’s best interests not to 10

receive a copy of the order or injunction. 11

56. Section 176 amended 13

In section 176(5)(b) delete “contact” and insert: 14

spending time 16

57. Section 177 amended 18

In section 177(2)(a) delete “66C(3)(a); and” and insert: 19

66C(2)(b); and 21

58. Section 178 amended 23

In section 178(1): 24

(a) delete “earlier” and insert: 25

earliest 27

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Family Court Act 1997 amended Part 2

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(b) delete paragraph (b) and insert: 1

(b) the time specified in the interim order as the 3

time at which the revival, variation or 4

suspension ceases to have effect; and 5

affected by an order (however described) made 7

by a court (whether of a kind referred to in 8

section 8(a) or (b) or otherwise), under 9

section 176 or otherwise, after the revival, 10

variation or suspension. 11

59. Section 188 amended 13

In section 188(3)(d) delete “dissolution of the marriage,” and 14

insert: 15

divorce of the parties, 17

60. Section 194A inserted 19

After section 194 insert: 20

194A. Declarations of parentage — FLA s. 69VA 22

As well as deciding, after receiving evidence, the issue 23

of the parentage of a child for the purposes of 24

proceedings, the court may also issue a declaration of 25

parentage that is conclusive evidence of parentage for 26

the purposes of all laws of the State. 27

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Part 2 Family Court Act 1997 amended

s. 61

page 58

61. Part 5 Division 11 Subdivision 6 inserted 1

At the end of Part 5 Division 11 insert: 2

Subdivision 6 — Short form reasons for decisions relating to 4

interim parenting orders 5

202AA. Short form reasons for decisions relating to interim 6

parenting orders — FLA s. 69ZL 7

(1) A court may give reasons in short form for a decision it 8

makes in relation to an interim parenting order. 9

(2) Subsection (1) does not otherwise affect the obligation 10

of a court to give reasons for a decision it makes in 11

relation to any matter arising under this Act. 12

62. Section 202K deleted 14

Delete section 202K. 15

63. Part 5 Division 13 replaced 16

Delete Part 5 Division 13 and insert: 17

Division 13 — Orders in proceedings relating to 19

contraventions of child-related orders 20

Subdivision 1 — Preliminary 21

205A. Simplified outline — FLA s. 70NAA 22

(1) This Division sets out orders that a court may make if 23

an issue arises in the proceedings about whether a 24

person (the respondent) has contravened a 25

child-related order. 26

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Family Court Act 1997 amended Part 2

s. 63

page 59

(2) The court may, at any stage of proceedings (and 1

without having to make a finding about the 2

contravention), make any of the following orders — 3

(a) a make-up time parenting order; 4

(b) an order varying or suspending a parenting 5

order; 6

party to the proceedings to attend a 8

post-separation parenting program. 9

(3) If the court finds on the balance of probabilities that the 10

respondent contravened the child-related order without 11

having a reasonable excuse, the court may make any of 12

the following orders (having regard to the seriousness 13

of the contravention) — 14

(a) an order requiring the respondent to enter into a 15

bond; 16

(b) an order imposing a fine on the respondent for 17

failing to enter into a bond. 18

(4) If the court is satisfied beyond reasonable doubt that 19

the respondent contravened the child-related order 20

without having a reasonable excuse, the court may also 21

make any of the following orders (having regard to the 22

seriousness of the contravention) — 23

(a) an order imposing a fine on the respondent; 24

(b) an order imposing a sentence of imprisonment 25

on the respondent. 26

(5) This Division also sets out ancillary matters relating to 27

terms of imprisonment, the enforcement of bonds and 28

other miscellaneous matters. 29

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Part 2 Family Court Act 1997 amended

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205B. Objects — FLA s. 70NAB 1

The principal objects of this Division are to meet the 2

best interests of children to whom child-related orders 3

relate by — 4

(a) supporting compliance with child-related 5

orders; and 6

(b) resolving difficulties associated with 7

child-related orders that are parenting orders 8

which have contributed to non-compliance with 9

such orders (including by varying or making 10

further orders); and 11

orders; and 13

(d) upholding the authority of the court by 14

enforcing compliance with child-related orders 15

where a court considers this necessary and 16

appropriate; and 17

(e) providing for sanctions for a person who 18

contravenes a child-related order without 19

reasonable excuse. 20

205C. Meaning of contravene a child-related order — 21

FLA s. 70NAC 22

(1) A person contravenes a child-related order only if — 23

(a) the person is a person (other than a child) to 24

whom the order applies and — 25

(i) the person intentionally fails to comply 26

with the order; or 27

(ii) the person makes no reasonable attempt 28

to comply with the order; 29

or 30

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Family Court Act 1997 amended Part 2

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(b) the person is not a person to whom the order 1

applies, and the person is not a child, but — 2

(i) the person intentionally prevents 3

compliance with the order by a person 4

to whom the order applies; or 5

(ii) the person aids or abets a contravention 6

of the order by a person to whom the 7

order applies. 8

(2) Without limiting subsection (1), a person contravenes 9

a child-related order if — 10

(a) the order provides for a matter set out in an 11

item of the Table in column 1; and 12

(b) the person intentionally does a thing set out in 13

that item in column 2. 14

Table 15

Item Column 1 Column 2

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.

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Part 2 Family Court Act 1997 amended

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Item Column 1 Column 2

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.

205D. Meaning of reasonable excuse for contravening a 1

child-related order — FLA s. 70NAD 2

(1) A person has a reasonable excuse for contravening a 3

child-related order if — 4

(a) the person contravened the order because at the 5

time of the contravention the person did not 6

understand the obligations imposed by the 7

order; and 8

(b) a court considers that the person ought to be 9

excused in respect of the contravention. 10

(2) If a court decides that a person has a reasonable excuse 11

under subsection (1) for contravening a child-related 12

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order, the court must explain to the person, in language 1

likely to be readily understood by the person — 2

(a) the obligations imposed on the person by the 3

order; and 4

(b) the consequences that may follow if the person 5

contravenes the order again. 6

(3) A person has a reasonable excuse for contravening a 7

child-related order if — 8

(a) the person contravened the order because the 9

person reasonably believed that the person’s 10

actions constituting the contravention were 11

necessary to protect the health or safety of the 12

person, a child or any other person; and 13

(b) the period of the contravention was not longer 14

than necessary to protect the health or safety of 15

the person, child or other person. 16

(4) This section does not limit the circumstances in which 17

a person may have a reasonable excuse for 18

contravening a child-related order. 19

205E. Burden of proof in relation to reasonable excuse — 20

FLA s. 70NADA 21

A person who claims to have a reasonable excuse for 22

contravening a child-related order has the legal burden 23

of proving the excuse. 24

205F. Standard of proof — FLA s. 70NAE 25

The standard of proof to be applied in determining 26

matters in proceedings under this Division (other than 27

section 205K(1)(d)) is proof on the balance of 28

probabilities. 29

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Part 2 Family Court Act 1997 amended

s. 63

page 64

Subdivision 2 — Orders relating to contraventions of 1

child-related orders 2

205G. Court may make orders in proceedings relating to 3

contravention of child-related orders — 4

FLA s. 70NBA 5

(1) This Subdivision sets out orders that a court exercising 6

jurisdiction in proceedings under this Act may make 7

if — 8

(a) an issue arises in the proceedings about whether 9

a person (the respondent) has contravened a 10

child-related order; and 11

(b) a party to the proceedings makes an application 12

for an order under this Subdivision in relation 13

to the issue. 14

(2) Each of the following is a child-related order — 15

(a) a parenting order; 16

(b) an injunction granted by a court — 17

(i) under section 235; or 18

(ii) under section 235A in so far as the 19

injunction is for the protection of a 20

child; 21

(i) under a parenting order; or 23

(ii) under section 205K(1)(a); or 24

(iii) for the purposes of section 205N(3); 25

(d) an undertaking given to, and accepted by, a 26

court that relates to, or to the making of, an 27

order, injunction or bond referred to in any of 28

paragraphs (a) to (c); 29

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(e) a subpoena issued under the rules that — 1

(i) relates to, or to the making of, an order, 2

injunction or bond referred to in any of 3

paragraphs (a) to (c); and 4

(ii) is issued to a party to the proceedings 5

for the order, injunction or bond, as the 6

case may be. 7

205H. Make-up time parenting orders — FLA s. 70NBB 8

(1) If a child does not spend time with a person as required 9

by a child-related order as a result of the alleged 10

contravention mentioned in section 205G(1), then, in 11

lieu of that time, the court may make a parenting order 12

(a make-up time parenting order) that the child spend 13

time with the person. 14

(2) The court may make a make-up time parenting order at 15

any stage of the proceedings. 16

(3) To avoid doubt, the amount of time specified in the 17

make-up time parenting order may be different from 18

the amount of time that the child missed with the 19

person as a result of the alleged contravention. 20

205I. Variation and suspension of child-related orders 21

that are parenting orders — FLA s. 70NBC 22

(1) The court may, at any stage of the proceedings, vary a 23

child-related order that is a parenting order. 24

(2) Subsection (1) does not limit the circumstances in 25

which a court having jurisdiction under this Act may 26

vary a child-related order that is a parenting order. 27

(3) The court may, at any stage of the proceedings, 28

suspend for a specified period of time the operation of, 29

or part of the operation of, a child-related order that is a 30

parenting order. 31

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205J. Post-separation parenting programs — 1

FLA 70NBD 2

(1) The court may, at any stage of the proceedings, make 3

an order requiring the respondent and, if appropriate, 4

one or more other parties to the proceedings, to attend a 5

post-separation parenting program or other specified 6

program. 7

(2) The executive manager of the court must advise the 8

provider of the program of the making of an order 9

under subsection (1) as soon as reasonably practicable 10

after the order is made. 11

(3) The provider of the program must inform the court, and 12

any other party to the proceedings, if — 13

(a) the provider considers that a person ordered to 14

attend the program is unsuitable to attend the 15

program; or 16

(b) a person ordered to attend the program fails to 17

attend the entire program, or any part of it. 18

(4) The court may make any order (other than an order 19

under section 205K(1)(d)) that it considers appropriate 20

if a person ordered to attend a program is considered as 21

being unsuitable to attend the program, or fails to 22

attend any part of the program. 23

(5) If the court has found that the respondent has 24

contravened the child-related order without having a 25

reasonable excuse, then the court must take into 26

account the seriousness of that contravention when 27

making an order under subsection (4). 28

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205K. Orders where contravention established without 1

reasonable excuse — FLA s. 70NBF 2

(1) If the court finds that the respondent has contravened a 3

child-related order without having a reasonable excuse, 4

the court may make any of the following orders — 5

(a) an order requiring the respondent to enter into a 6

bond in accordance with section 205L; 7

(b) if an order is made under paragraph (a), and the 8

respondent fails, without having a reasonable 9

excuse, to enter into the bond — an order 10

imposing a fine not exceeding $3 130 on the 11

respondent; 12

spending time with, or living with, a person 14

(the affected person) for a period — an order 15

requiring the respondent to compensate the 16

affected person for some or all of any expenses 17

the affected person reasonably incurred as a 18

result of the contravention; 19

(d) where the court is satisfied beyond reasonable 20

doubt that the respondent contravened the 21

order — 22

(i) an order imposing a fine not exceeding 23

$18 780; 24

(ii) an order imposing a term of 25

imprisonment. 26

(2) In making an order mentioned in subsection (1), the 27

court must have regard to — 28

(a) the likely effects of making the order on any 29

child, or any other person; and 30

(b) the seriousness of the contravention. 31

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(3) Without limiting the matters the court may take into 1

account, the following matters must be taken into 2

account by the court when having regard to the 3

seriousness of the contravention — 4

(a) whether a court has previously found that the 5

respondent has contravened a child-related 6

order without having a reasonable excuse; 7

(b) whether the respondent behaved in a way that 8

showed a serious disregard of the respondent’s 9

obligations under the child-related order 10

mentioned in subsection (1); 11

child is to live or spend time under the 13

child-related order mentioned in subsection (1). 14

(4) The court may sentence the respondent to 15

imprisonment under subsection (1)(d)(ii) only if the 16

court is satisfied that, in all the circumstances of the 17

case, it would not be appropriate for the court to deal 18

with the contravention in any other way under 19

subsection (1). 20

Subdivision 3 — Further provisions relating to bonds and 21

imprisonment 22

205L. Matters relating to bonds — FLA s. 70NCA 23

(1) This section sets out requirements relating to bonds 24

that the court may require the respondent to enter into 25

under section 205K(1)(a). 26

(2) A bond is to be for a specified period of up to 2 years. 27

(3) A bond may be — 28

(a) with or without surety; and 29

(b) with or without security. 30

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(4) The conditions that may be imposed on the respondent 1

by a bond include (without limitation) conditions that 2

require the respondent — 3

(a) to attend a post-separation parenting program; 4

or 5

(b) to attend an appointment (or a series of 6

appointments) with a family consultant; or 7

(d) to attend family dispute resolution; or 9

(e) to be of good behaviour. 10

(5) Before requiring the respondent to enter into a bond, 11

the court must explain to the respondent, in language 12

likely to be readily understood by the respondent — 13

(a) the purpose and effect of the proposed 14

requirement; and 15

(b) the consequences that may follow if the 16

respondent — 17

(i) fails to enter into the bond; or 18

(ii) having entered into the bond — fails to 19

act in accordance with the bond. 20

205M. Procedure for enforcing bonds — FLA s. 70NCB 21

(1) This section applies if — 22

(a) the court finds that the respondent has 23

contravened a child-related order without 24

having a reasonable excuse; and 25

(b) the respondent has entered into a bond in 26

accordance with an order made under 27

section 205K(1)(a); and 28

reasonable excuse, to comply with the bond. 30

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(2) The court may — 1

(a) without prejudice to the continuance of the 2

bond, impose a fine not exceeding $3 130 on 3

the respondent; or 4

(b) revoke the bond and deal with the respondent in 5

any manner in which the respondent could have 6

been dealt with for the contravention of the 7

child-related order if — 8

(i) the bond had not been entered into; and 9

(ii) the respondent was before the court 10

under this Division in respect of the 11

contravention of the child-related order. 12

(3) Without limiting the matters the court may take into 13

account, the court must take into account the following 14

matters when acting under subsection (2) — 15

(a) the fact that the bond was entered into; 16

(b) anything done pursuant to the bond; 17

for or in respect of the contravention of the 19

child-related order. 20

205N. Matters relating to imprisonment — FLA s. 70NCC 21

(1) This section applies if a sentence of imprisonment 22

is imposed on the respondent under 23

section 205K(1)(d)(ii). 24

(2) The sentence of imprisonment must be expressed to 25

be — 26

(a) for a specified period of no more than 27

12 months; or 28

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(b) for a period ending at the earlier of — 1

(i) the time when the respondent complies 2

with the child-related order concerned; 3

or 4

(ii) the time when the respondent has been 5

imprisoned under the sentence for 6

12 months, or such lesser period as is 7

specified by the court ordering the 8

sentence. 9

(3) When sentencing the respondent to imprisonment, the 10

court may direct that, after serving a specified part of 11

the term of imprisonment, the respondent be released 12

upon the respondent entering into a bond (with or 13

without surety or security) that the respondent will be 14

of good behaviour for a specified period of up to 15

2 years. 16

(4) The court that sentences the respondent to 17

imprisonment must — 18

(a) state the reasons why it is satisfied as 19

mentioned in section 205K(4); and 20

(b) cause those reasons to be entered in the records 21

of the court. 22

(5) The failure of the court to comply with subsection (4) 23

does not invalidate a sentence. 24

205O. Powers of court in relation to imprisoned person — 25

FLA s. 70NCD 26

(1) The court that has sentenced the respondent to 27

imprisonment may order the release of the respondent 28

if it is satisfied that the respondent will, if released, 29

comply with the court’s orders. 30

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(2) The court that sentences the respondent to 1

imprisonment may — 2

(a) suspend the sentence upon the terms and 3

conditions determined by the court; and 4

(b) terminate such a suspension. 5

205P. Rules relating to child maintenance orders and 6

child support — FLA s. 70NCE 7

(1) The court must not make an order imposing a sentence 8

of imprisonment on the respondent under 9

section 205K(1)(d)(ii), in respect of a contravention of 10

a child maintenance order made under this Act, unless 11

the court is satisfied that the contravention was 12

intentional or fraudulent. 13

(2) To avoid doubt, the serving by the respondent of a 14

period of imprisonment imposed under 15

section 205K(1)(d)(ii) for failure to make a payment 16

under a child maintenance order does not affect the 17

respondent’s liability to make the payment. 18

(3) The court must not make an order imposing a sentence 19

of imprisonment on the respondent under 20

section 205K(1)(d)(ii) in respect of — 21

(a) a contravention of an administrative assessment 22

of child support made under the Child Support 23

(Assessment) Act 1989 (Commonwealth); or 24

(b) a breach of a child support agreement made 25

under that Act; or 26

(whether of a kind referred to in section 8(a) 28

or (b) or otherwise) under Part 7 Division 4 of 29

that Act for a departure from such an 30

assessment (including such an order that 31

contains matters mentioned in section 141 of 32

that Act). 33

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Subdivision 4 — Miscellaneous 1

205Q. Court may issue warrant for arrest of alleged 2

offender — FLA s. 70NDA 3

(1) The court may issue a warrant authorising a person to 4

whom it is addressed to arrest the respondent if — 5

(a) a child-related order that is a parenting order 6

provides that a child is to live with, spend time 7

with or communicate with a person (the 8

complainant); and 9

(b) the court is satisfied that there are reasonable 10

grounds for believing that the respondent has 11

contravened the order on any of the grounds 12

mentioned in any of items 1 to 3 of the Table in 13

section 205C(2); and 14

that the respondent will attend before the court 16

to be dealt with under this Division for the 17

alleged contravention. 18

(2) A warrant stops being in force on the date specified in 19

the warrant (which must be no more than 6 months 20

after the issue of the warrant). 21

205R. Relationship between Division and prosecutions for 22

offences under other laws — FLA s. 70NDB 23

(1) This section applies if — 24

(a) an act or omission by the respondent — 25

(i) constitutes an alleged contravention of a 26

child-related order; and 27

(ii) also constitutes an alleged offence under 28

any law; 29

and 30

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(b) the respondent is prosecuted in respect of the 1

offence. 2

(2) The court must — 3

(a) dismiss proceedings in relation to the alleged 4

contravention of the child-related order; or 5

(b) adjourn those proceedings until the prosecution 6

has been completed. 7

(3) Nothing in this Division renders a person liable to be 8

punished twice in respect of the same act or omission. 9

Division 14 — Dealing with people who have been 10

arrested 11

Subdivision 1 — What this Division does 12

205S. What this Division does — FLA s. 70P 13

This Division is about dealing with people who have 14

been arrested. 15

Subdivision 2 — Dealing with people who have been 16

arrested 17

205SA. Situation to which this Subdivision applies — 18

FLA s. 70PA 19

This Subdivision applies if a person — 20

(a) is arrested under a warrant issued under 21

section 205Q(1); or 22

(b) is arrested without warrant under a recovery 23

order. 24

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205SB. Arrested person to be brought before court — 1

FLA s. 70PB 2

(1) The arresting person must — 3

(a) ensure that the alleged offender is brought 4

before a court before the end of the holding 5

period applicable under subsection (4); and 6

(b) take all reasonable steps to ensure that, before 7

the alleged offender is brought before a court, 8

the person who applied for the warrant or 9

recovery order is aware — 10

(i) that the alleged offender has been 11

arrested; and 12

(ii) of the court before which the alleged 13

offender is to be brought. 14

(2) The alleged offender must not be released before the 15

end of the holding period except under an order of a 16

court. 17

(3) This section does not authorise the holding in custody 18

of the alleged offender after the end of the holding 19

period. 20

(4) In this section — 21

holding period, in relation to the arrest of an alleged 22

offender, is — 23

(a) if a Saturday, Sunday or public holiday starts 24

within 24 hours after the arrest of the alleged 25

offender, the longer of the following periods — 26

(i) the period starting with the arrest and 27

ending 48 hours later; 28

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(ii) the period starting with the arrest and 1

ending at the end of the next day after 2

the day of the arrest that is not a 3

Saturday, Sunday or public holiday; 4

or 5

(b) in any other case, the period starting with the 6

arrest and ending 24 hours later. 7

205SC. Obligation of court where application before it to 8

deal with contravention — FLA s. 70PC 9

(1) This section applies if — 10

(a) the alleged offender is brought before a court 11

under section 205SB; and 12

(b) there is an application before the court for the 13

alleged offender to be dealt with under 14

Division 13 for the alleged contravention. 15

(2) The court must, without delay, proceed to hear and 16

determine the application. 17

205SD. Obligation of court where no application before it, 18

but application before another court, to deal with 19

contravention — FLA s. 70PD 20

(1) This section applies if — 21

(a) the alleged offender is brought before a court 22

under section 205SB; and 23

(b) there is no application, or no longer any 24

application, before the court for the alleged 25

offender to be dealt with under Division 13 for 26

the alleged contravention; and 27

before another court for the alleged offender to 29

be dealt with under Division 13 for the alleged 30

contravention. 31

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(2) The court must, without delay — 1

(a) order that the alleged offender is to be released 2

from custody on entering into a recognisance 3

(with or without surety or security) that the 4

alleged offender will attend before the other 5

court on a date, at a time and at a place 6

specified by the court; or 7

(b) order the arresting person to arrange for the 8

alleged offender to be brought before the other 9

court on such date and at such time as the court 10

specifies, being a date and time such that the 11

alleged offender is to be brought before the 12

other court as soon as practicable, and in any 13

event not more than 72 hours, after the order is 14

made. 15

(3) If a court makes an order under subsection (2)(b) for 16

the alleged offender to be brought before another 17

court — 18

(a) subject to paragraph (c), the alleged offender 19

may be kept in custody until brought before the 20

other court; and 21

(b) if the alleged offender is brought before the 22

other court as required by the order, the other 23

court must, without delay, proceed to hear and 24

determine the application mentioned in 25

subsection (1)(c); and 26

other court as required by the order, the alleged 28

offender must be released without delay. 29

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205SE. Obligation of court where no application before any 1

court to deal with contravention — FLA s. 70PE 2

(1) This section applies if — 3

(a) the alleged offender is brought before a court 4

under section 205SB; and 5

(b) there is no application, or no longer any 6

application, before the court for the alleged 7

offender to be dealt with under Division 13 for 8

the alleged contravention; and 9

application, or no longer any application, 11

before any other court for the alleged offender 12

to be dealt with under Division 13 for the 13

alleged contravention. 14

(2) The court must, without delay, order the release of the 15

alleged offender. 16

205SF. Applications heard as required by section 205SC(2) 17

or 205SD(3)(b) — FLA s. 70PF 18

(1) If a court hearing an application as required by 19

section 205SC(2) or 205SD(3)(b) adjourns the hearing, 20

the court must — 21

(a) order the alleged offender to be kept in such 22

custody as the court considers appropriate 23

during the adjournment; or 24

(b) order that the alleged offender is to be released 25

from custody, either on entering into a 26

recognisance (with or without surety or 27

security) that the alleged offender will attend 28

before the court on the resumption of the 29

hearing or otherwise. 30

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(2) This section does not authorise the holding in custody 1

of the alleged offender during an adjournment of 2

proceedings that — 3

(a) is expressed to be for a period of more than 4

24 hours; or 5

(b) continues for more than 24 hours. 6

64. Part 8 Division 1A inserted 8

At the beginning of Part 8 insert: 9

Division 1A — Overarching purpose of the family law 11

practice and procedure provisions 12

211C. Overarching purpose of the family law practice and 13

procedure provisions — FLA s. 95 14

(1) The overarching purpose of the family law practice and 15

procedure provisions is to facilitate the just resolution 16

of disputes — 17

(a) in a way that ensures the safety of families and 18

children; and 19

(b) in relation to proceedings under this Act in 20

which the best interests of a child are the 21

paramount consideration — in a way that 22

promotes the best interests of the child; and 23

(d) as quickly, inexpensively and efficiently as 25

possible. 26

(2) Without limiting subsection (1), the overarching 27

purpose includes the following objectives in relation to 28

proceedings under this Act — 29

(a) the just determination of all such proceedings; 30

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(b) the efficient use of the judicial and 1

administrative resources available for the 2

purposes of courts exercising jurisdiction in 3

such proceedings; 4

courts exercising jurisdiction in such 6

proceedings; 7

(d) the disposal of all such proceedings in a timely 8

manner; 9

(e) the resolution of disputes at a cost that is 10

proportionate to the importance and complexity 11

of the matters in dispute. 12

(3) The family law practice and procedure provisions must 13

be interpreted and applied, and any power conferred or 14

duty imposed by them (including the power to make 15

rules) must be exercised or carried out, in the way that 16

best promotes the overarching purpose. 17

(4) The family law practice and procedure provisions are 18

the following, so far as they apply in relation to 19

proceedings under this Act — 20

(a) the rules; 21

(b) any other provision made by or under this Act, 22

or any other written law, with respect to the 23

practice and procedure of a court (whether of a 24

kind referred to in section 8(a) or (b) or 25

otherwise). 26

211D. Duty to act consistently with overarching 27

purpose — FLA s. 96 28

(1) The parties to proceedings under this Act must conduct 29

the proceedings (including negotiations for settlement 30

of the dispute to which the proceedings relate) in a way 31

that is consistent with the overarching purpose of the 32

family law practice and procedure provisions. 33

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(2) A party’s lawyer must, in the conduct of proceedings 1

under this Act on the party’s behalf (including in the 2

conduct of negotiations for settlement of the dispute to 3

which the proceedings relate) — 4

(a) take account of the duty imposed on the party 5

by subsection (1); and 6

(b) assist the party to comply with the duty. 7

(3) In proceedings under this Act a court may, for the 8

purpose of enabling a party to comply with the duty 9

imposed by subsection (1), require the party’s lawyer 10

to give the party an estimate of — 11

(a) the likely duration of the proceedings or part of 12

the proceedings; and 13

(b) the likely amount of costs that the party will 14

have to pay in connection with the proceedings 15

or part of the proceedings (including the costs 16

that the lawyer will charge to the party). 17

(4) In exercising the discretion to award costs in 18

proceedings under this Act, a court must take account 19

of any failure to comply with the duty imposed by 20

subsection (1) or (2). 21

(5) Without limiting the exercise of that discretion, a court 22

may order a party’s lawyer to bear costs personally. 23

(6) If a court orders a lawyer to bear costs personally 24

because of a failure to comply with the duty imposed 25

by subsection (2), the lawyer must not recover the costs 26

from the lawyer’s client. 27

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65. Section 212 amended 1

In section 212(1) delete “subsections (2) and (5),” and insert: 2

this Act, 4

66. Section 214C amended 6

(1) In section 214C(1)(c) delete “Family Law Act section 98AB(1)” 7

and insert: 8

Federal Circuit and Family Court of Australia Act 2021 10

(Commonwealth) section 72(1) 11

(2) In section 214C(2)(b) delete “Family Law Act 13

section 98AB(2)” and insert: 14

Federal Circuit and Family Court of Australia Act 2021 16

(Commonwealth) section 72(2) 17

Note: The heading to amended section 214C is to read: 19

Swearing or affirming of affidavits 20

67. Section 219AI amended 21

In section 219AI delete “Evidence and Procedure (New 22

Zealand) Act 1994 of the Commonwealth.” and insert: 23

Trans-Tasman Proceedings Act 2010 (Commonwealth). 25

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68. Parts 8A and 8B inserted 1

After section 219AL insert: 2

Part 8A — Suppression and non-publication 4

orders 5

Division 1 — Preliminary 6

219AM. Terms used — FLA s. 102P 7

In this Part — 8

information includes any document; 9

news publisher means a person engaged in the 10

business of publishing news or a public or community 11

broadcasting service engaged in the publishing of news 12

through a public news medium; 13

non-publication order means an order that prohibits or 14

restricts the publication of information (but that does 15

not otherwise prohibit or restrict the disclosure of 16

information); 17

party to proceedings includes the complainant or 18

victim (or alleged victim) in criminal proceedings and 19

any person named in evidence given in proceedings 20

and, in relation to proceedings that have concluded, 21

means a person who was a party to the proceedings 22

before the proceedings concluded; 23

publish means disseminate or provide access to the 24

public or a section of the public by any means, 25

including by — 26

(a) publication in a book, newspaper, magazine or 27

other written publication; or 28

(b) broadcast by radio or television; or 29

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(d) broadcast or publication by means of the 1

internet; 2

suppression order means an order that prohibits or 3

restricts the disclosure of information (by publication 4

or otherwise). 5

219AN. Powers of a court not affected — FLA s. 102PA 6

This Part does not limit or otherwise affect any powers 7

that a court has apart from this Part to regulate its 8

proceedings or to deal with a contempt of the court. 9

219AO. Other laws not affected — FLA s. 102PB 10

This Part does not limit or otherwise affect the 11

operation of a provision made by or under any Act 12

(other than this Act) that prohibits or restricts, or 13

authorises a court to prohibit or restrict, the publication 14

or other disclosure of information in connection with 15

proceedings. 16

219AP. Relationship with Part 11A — FLA s. 102PC 17

This Part and Part 11A do not limit each other. 18

Division 2 — Suppression and non-publication orders 19

219AQ. Safeguarding public interest in open justice — 20

FLA s. 102PD 21

In deciding whether to make a suppression order or 22

non-publication order, the court concerned must take 23

into account that a primary objective of the 24

administration of justice is to safeguard the public 25

interest in open justice. 26

219AR. Power to make orders — FLA s. 102PE 27

(1) A court exercising jurisdiction in proceedings under 28

this Act may, by making a suppression order or 29

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non-publication order on grounds permitted by this 1

Part, prohibit or restrict the publication or other 2

disclosure of — 3

(a) information tending to reveal the identity of or 4

otherwise concerning any party to or witness in 5

the proceedings or any person who is related to 6

or otherwise associated with any party to or 7

witness in the proceedings; or 8

(b) information that relates to the proceedings and 9

is — 10

(i) information that comprises evidence or 11

information about evidence; or 12

(ii) information obtained by the process of 13

discovery; or 14

(iii) information produced under a subpoena; 15

or 16

(iv) information lodged with or filed in the 17

court. 18

(2) The court may make such orders as it thinks 19

appropriate to give effect to an order under 20

subsection (1). 21

219AS. Grounds for making an order — FLA s. 102PF 22

(1) The court may make a suppression order or 23

non-publication order on one or more of the following 24

grounds — 25

(a) the order is necessary to prevent prejudice to 26

the proper administration of justice; 27

(b) the order is necessary to prevent prejudice to 28

the interests of the Commonwealth or a State or 29

Territory in relation to national or international 30

security; 31

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any person; 2

(d) the order is necessary to avoid causing undue 3

distress or embarrassment to a party to or 4

witness in criminal proceedings involving an 5

offence of a sexual nature (including an act of 6

indecency). 7

(2) A suppression order or non-publication order must 8

specify the ground or grounds on which the order is 9

made. 10

219AT. Procedure for making an order — FLA s. 102PG 11

(1) The court may make a suppression order or 12

non-publication order on its own initiative or on the 13

application of — 14

(a) a party to the proceedings concerned; or 15

(b) any other person considered by the court to 16

have a sufficient interest in the making of the 17

order. 18

(2) Each of the following persons is entitled to appear and 19

be heard by the court on an application for a 20

suppression order or non-publication order — 21

(a) the applicant for the order; 22

(b) a party to the proceedings concerned; 23

Government); 25

(d) the government (or an agency of the 26

government) of the Commonwealth or another 27

State or a Territory; 28

(e) a news publisher; 29

(f) any other person who, in the court’s opinion, 30

has a sufficient interest in the question of 31

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whether a suppression order or non-publication 1

order should be made. 2

(3) A suppression order or non-publication order may be 3

made at any time during proceedings or after 4

proceedings have concluded. 5

(4) A suppression order or non-publication order may be 6

made subject to such exceptions and conditions as the 7

court thinks fit and specifies in the order. 8

(5) A suppression order or non-publication order must 9

specify the information to which the order applies with 10

sufficient particularity to ensure that the court order is 11

limited to achieving the purpose for which the order is 12

made. 13

219AU. Interim orders — FLA s. 102PH 14

(1) If an application is made to the court for a suppression 15

order or non-publication order, the court may, without 16

determining the merits of the application, make the 17

order as an interim order to have effect, subject to 18

revocation by the court, until the application is 19

determined. 20

(2) If an order is made as an interim order, the court must 21

determine the application as a matter of urgency. 22

219AV. Duration of orders — FLA s. 102PI 23

(1) A suppression order or non-publication order operates 24

for the period decided by the court and specified in the 25

order. 26

(2) In deciding the period for which an order is to operate, 27

the court is to ensure that the order operates for no 28

longer than is reasonably necessary to achieve the 29

purpose for which it is made. 30

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(3) The period for which an order operates may be 1

specified by reference to a fixed or ascertainable period 2

or by reference to the occurrence of a specified future 3

event. 4

219AW. Exception for court officials — FLA s. 102PJ 5

A suppression order does not prevent a person from 6

disclosing information if the disclosure is not by 7

publication and is in the course of performing functions 8

or duties or exercising powers in a public official 9

capacity — 10

(a) in connection with the conduct of proceedings 11

or the recovery or enforcement of any penalty 12

imposed in proceedings; or 13

(b) in compliance with any procedure adopted by 14

the court for informing a news publisher of the 15

existence and content of a suppression order or 16

non-publication order made by the court. 17

219AX. Contravention of order — FLA s. 102PK 18

(1) A person commits an offence if — 19

(a) the person does an act or omits to do an act; and 20

(b) the act or omission contravenes an order made 21

by a court under section 219AR. 22

Penalty for this subsection: imprisonment for 23

12 months and a fine of $18 780. 24

(2) An act or omission that constitutes an offence under 25

this section may be punished as a contempt of court 26

even though it could be punished as an offence. 27

(3) An act or omission that constitutes an offence under 28

this section may be punished as an offence even though 29

it could be punished as a contempt of court. 30

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(4) If an act or omission constitutes both an offence under 1

this section and a contempt of court, the offender is not 2

liable to be punished twice. 3

(5) Part 10 does not apply in relation to a contravention of 4

an order made by a court under section 219AR. 5

Part 8B — Decrees and orders relating to 6

unmeritorious, harmful, and vexatious 7

proceedings 8

Division 1 — Preliminary 9

219AY. Terms used — FLA s. 102Q 10

(1) In this Part — 11

appropriate court official means — 12

(a) in relation to the Family Court of Western 13

Australia — the Principal Registrar of the 14

Court; and 15

(b) in relation to any other court — the principal 16

officer (however described) of the court; 17

Australian court or tribunal means a court or tribunal 18

of the Commonwealth, a State or a Territory; 19

harmful proceedings order means an order made 20

under section 219AZB(1); 21

institute, in relation to proceedings, includes — 22

(a) for civil proceedings — the taking of a step or 23

the making of an application that may be 24

necessary before proceedings can be started 25

against a party; and 26

(b) for proceedings before a tribunal — the taking 27

of a step or the making of an application that 28

may be necessary before proceedings can be 29

started before the tribunal; and 30

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complaint or the obtaining of a warrant for the 2

arrest of an alleged offender; and 3

(d) for civil or criminal proceedings or proceedings 4

before a tribunal — the taking of a step or the 5

making of an application that may be necessary 6

to start an appeal in relation to the proceedings 7

or to a decision made in the course of the 8

proceedings; 9

proceedings — 10

(a) in relation to a court — has the meaning given 11

by section 5(1); and 12

(b) in relation to a tribunal — means a proceeding 13

in the tribunal, whether between parties or not, 14

and includes an incidental proceeding in the 15

course of, or in connection with, a proceeding; 16

proceedings of a particular type includes — 17

(a) proceedings in relation to a particular matter; 18

and 19

(b) proceedings against a particular person; 20

vexatious proceedings includes — 21

(a) proceedings that are an abuse of the process of 22

a court or tribunal; and 23

(b) proceedings instituted in a court or tribunal to 24

harass or annoy, to cause delay or detriment, or 25

for another wrongful purpose; and 26

tribunal without reasonable ground; and 28

(d) proceedings conducted in a court or tribunal in 29

a way so as to harass or annoy, cause delay or 30

detriment, or achieve another wrongful 31

purpose; 32

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vexatious proceedings order means an order made 1

under section 219AZG(2). 2

(2) A reference in this Part to a person acting in concert 3

with another person in instituting or conducting 4

proceedings does not include a reference to a person 5

who is so acting as a lawyer or representative of the 6

other person. 7

219AZ. Interactions between provisions and with other 8

powers of court — FLA s. 102QA 9

The provisions of this Part do not limit or otherwise 10

affect — 11

(a) each other; or 12

(b) any other power that a court has to deal with 13

proceedings. 14

Division 2 — Summary decrees 15

219AZA. Summary decrees — FLA s. 102QAB 16

(1) In proceedings under this Act, the court hearing the 17

proceedings may make a decree for one party (the first 18

party) against another in relation to the whole or any 19

part of the proceedings if — 20

(a) the first party is prosecuting the proceedings or 21

that part of the proceedings; and 22

(b) the court is satisfied that the other party has no 23

reasonable prospect of successfully defending 24

the proceedings or that part of the proceedings. 25

(2) In proceedings under this Act, the court hearing the 26

proceedings may make a decree for one party (the first 27

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party) against another in relation to the whole or any 1

part of the proceedings if — 2

(a) the first party is defending the proceedings or 3

that part of the proceedings; and 4

(b) the court is satisfied that the other party has no 5

reasonable prospect of successfully prosecuting 6

the proceedings or that part of the proceedings. 7

(3) For the purposes of this section, a defence or 8

proceedings or part of proceedings need not be 9

hopeless or bound to fail to have no reasonable 10

prospect of success. 11

(4) In proceedings under this Act, the court hearing the 12

proceedings may dismiss all or part of the proceedings 13

at any stage if it is satisfied that the proceedings or the 14

part is frivolous, vexatious or an abuse of process. 15

(5) To avoid doubt, proceedings or a part of proceedings 16

are not frivolous, vexatious or an abuse of process 17

merely because an application relating to the 18

proceedings or the part is made and later withdrawn. 19

(6) If the court makes a decree, or dismisses all or part of 20

proceedings, under this section, the court may make 21

such order as to costs as the court considers just. 22

(7) The court may take action under this section on its own 23

initiative or on application by a party to the 24

proceedings. 25

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Division 3 — Harmful proceedings orders 1

Subdivision 1 — Making harmful proceedings orders 2

219AZB. Making harmful proceedings orders — 3

FLA s. 102QAC 4

(1) A court exercising jurisdiction in proceedings under 5

this Act may make an order (a harmful proceedings 6

order) prohibiting a party (the first party) to the 7

proceedings from instituting proceedings under this 8

Act against another party to the proceedings without 9

the leave of the court under section 219AZF, if the 10

court is satisfied that there are reasonable grounds to 11

believe that — 12

(a) the other party would suffer harm if the first 13

party instituted further proceedings against the 14

other party; or 15

(b) in the case of child-related proceedings — the 16

child who is the subject of the proceedings 17

would suffer harm if the first party instituted 18

further proceedings against the other party. 19

(2) For the purposes of subsection (1), harm may include, 20

but is not limited to, the following — 21

(a) psychological harm or oppression; 22

(b) major mental distress; 23

capacity to care for a child; 25

(d) financial harm. 26

(3) In determining whether to make an order under 27

subsection (1), the court may have regard to — 28

(a) the history of the proceedings under this Act 29

between the first party and the other party; and 30

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(b) whether the first party has frequently instituted 1

or conducted proceedings against the other 2

party in any Australian court or tribunal 3

(including proceedings instituted (or attempted 4

to be instituted) or conducted, and orders made, 5

before the commencement of the Family Court 6

Amendment (Commonwealth Reforms) 7

Act 2024 section 68); and 8

cumulative effect, of any harm resulting from 10

the proceedings referred to in paragraphs (a) 11

and (b). 12

(4) The court may make a harmful proceedings order on its 13

own initiative or on application by a party to the 14

proceedings. 15

(5) The court must not make a harmful proceedings order 16

in relation to a person without hearing the person or 17

giving the person an opportunity of being heard. 18

(6) An order made under subsection (1) is a final order. 19

(7) If the court makes an order under subsection (1), the 20

court must also make an order as to whether the court 21

is to notify the other party, in the event that the first 22

party makes an application under section 219AZD for 23

leave to institute proceedings against the other party, of 24

either or both of the following — 25

(a) that the application has been made; 26

(b) if the application is dismissed — that the 27

application has been dismissed. 28

(8) The court must have regard to the wishes of the other 29

party in making an order under subsection (7). 30

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Subdivision 2 — Consequences of harmful proceedings 1

orders 2

219AZC. Proceedings in contravention of harmful 3

proceedings order — FLA s. 102QAD 4

(1) If a person is subject to a harmful proceedings order 5

prohibiting the person from instituting proceedings 6

under this Act in a court having jurisdiction under this 7

Act — 8

(a) the person must not institute proceedings in the 9

court without the leave of the court under 10

section 219AZF; and 11

(b) another person must not, acting in concert with 12

the person, institute proceedings in the court 13

without the leave of the court under 14

section 219AZF. 15

(2) If proceedings are instituted in contravention of 16

subsection (1), the proceedings are stayed. 17

(3) Without limiting subsection (2), the court may make — 18

(a) an order declaring proceedings are proceedings 19

to which subsection (2) applies; and 20

(b) any other order in relation to the stayed 21

proceedings it considers appropriate, including 22

an order for costs. 23

(4) The court may make an order under subsection (3) on 24

its own initiative or on the application of a person a 25

party to the proceedings. 26

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219AZD. Application for leave to institute proceedings — 1

FLA s. 102QAE 2

(1) This section applies to a person (the applicant) who 3

is — 4

(a) subject to a harmful proceedings order 5

prohibiting the person from instituting further 6

proceedings under this Act in a court having 7

jurisdiction under this Act; or 8

(b) acting in concert with another person who is 9

subject to an order mentioned in paragraph (a). 10

(2) The applicant may apply to the court for leave to 11

institute proceedings that are subject to the order. 12

(3) The applicant must file an affidavit with the application 13

that — 14

(a) lists all the occasions on which the applicant 15

has applied for leave under this section; and 16

(b) discloses all relevant facts about the 17

application, whether supporting or adverse to 18

the application, that are known to the applicant. 19

(4) The applicant must — 20

(a) not serve a copy of the application or affidavit 21

on a person unless an order is made under 22

section 219AZF; and 23

(b) if the order is made — serve the copy in 24

accordance with the order. 25

219AZE. Dismissing application for leave — 26

FLA s. 102QAF 27

(1) The court may make an order dismissing an application 28

under section 219AZD for leave to institute 29

proceedings if it considers the affidavit does not 30

substantially comply with section 219AZD(3). 31

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(2) The court must make an order dismissing an 1

application under section 219AZD for leave to institute 2

proceedings if it considers the proceedings are 3

vexatious proceedings. 4

(3) The court may dismiss the application without an oral 5

hearing (either with or without the consent of the 6

applicant). 7

(4) The court may make an order under this section in 8

Chambers. 9

219AZF. Granting application for leave — 10

FLA s. 102QAG 11

(1) The court may make an order granting the application 12

for leave only if it is satisfied that the proceedings are 13

not frivolous, vexatious or an abuse of process, and 14

have reasonable prospects of success. 15

(2) An order under subsection (1) may be made subject to 16

the conditions the court considers appropriate. 17

Division 4 — Vexatious proceedings orders 18

Subdivision 1 — Making vexatious proceedings orders 19

219AZG. Making vexatious proceedings orders — 20

FLA s. 102QB 21

(1) This section applies if a court exercising jurisdiction in 22

proceedings under this Act is satisfied — 23

(a) a person has frequently instituted or conducted 24

vexatious proceedings in Australian courts or 25

tribunals; or 26

(b) a person, acting in concert with another person 27

who is subject to a vexatious proceedings order 28

or who is covered by paragraph (a), has 29

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instituted or conducted vexatious proceedings 1

in an Australian court or tribunal. 2

(2) The court may make any or all of the following 3

orders — 4

(a) an order staying or dismissing all or part of any 5

proceedings in the court already instituted by 6

the person; 7

(b) an order prohibiting the person from instituting 8

proceedings, or proceedings of a particular 9

type, under this Act in a court having 10

jurisdiction under this Act; 11

in relation to the person. 13

(3) The court may make a vexatious proceedings order on 14

its own initiative or on the application of any of the 15

following — 16

(a) the Attorney General; 17

(b) the appropriate court official; 18

instituted or conducted vexatious proceedings; 20

(d) a person who has a sufficient interest in the 21

matter. 22

(4) The court must not make a vexatious proceedings order 23

in relation to a person without hearing the person or 24

giving the person an opportunity of being heard. 25

(5) An order made under subsection (2)(a) or (b) is a final 26

order. 27

(6) For the purposes of subsection (1), the court may have 28

regard to the following, including in relation to 29

proceedings instituted (or attempted to be instituted) or 30

conducted, and orders made, before the 31

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commencement of the Family Court Amendment 1

(Commonwealth Reforms) Act 2024 section 68 — 2

(a) proceedings instituted (or attempted to be 3

instituted) or conducted in any Australian court 4

or tribunal; 5

(b) orders made by any Australian court or 6

tribunal; 7

conducted in any Australian court or tribunal 9

(including the person’s compliance with orders 10

made by that court or tribunal). 11

219AZH. Notification of vexatious proceedings orders — 12

FLA s. 102QC 13

(1) A person may request the appropriate court official of a 14

court for a certificate stating whether a person named 15

in the request is or has been the subject of a vexatious 16

proceedings order made by the court. 17

(2) If a person makes a request under subsection (1) and 18

the person named in the request is or has been the 19

subject of a vexatious proceedings order made by the 20

court, the appropriate court official must issue to the 21

person making the request a certificate — 22

(a) specifying the date of the order; and 23

(b) specifying any other information prescribed by 24

the rules. 25

(3) This section is subject to any written law, law of the 26

Commonwealth or order of the court restricting the 27

publication or disclosure of the name of a party to 28

proceedings in the court. 29

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Subdivision 2 — Consequences of vexatious proceedings 1

orders 2

219AZI. Proceedings in contravention of vexatious 3

proceedings order — FLA s. 102QD 4

(1) If a person is subject to a vexatious proceedings order 5

prohibiting the person from instituting proceedings, or 6

proceedings of a particular type, under this Act in a 7

court having jurisdiction under this Act — 8

(a) the person must not institute proceedings, or 9

proceedings of that type, in the court without 10

the leave of the court under section 219AZL; 11

and 12

(b) another person must not, acting in concert with 13

the person, institute proceedings, or 14

proceedings of that type, in the court without 15

the leave of the court under section 219AZL. 16

(2) If proceedings are instituted in contravention of 17

subsection (1), the proceedings are stayed. 18

(3) Without limiting subsection (2), the court may make — 19

(a) an order declaring proceedings are proceedings 20

to which subsection (2) applies; and 21

(b) any other order in relation to the stayed 22

proceedings it considers appropriate, including 23

an order for costs. 24

(4) The court may make an order under subsection (3) on 25

its own initiative or on the application of any of the 26

following — 27

(a) the Attorney General; 28

(b) the appropriate court official; 29

instituted or conducted vexatious proceedings; 31

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(d) a person who has a sufficient interest in the 1

matter. 2

219AZJ. Application for leave to institute proceedings by 3

person subject to vexatious proceedings order — 4

FLA s. 102QE 5

(1) This section applies to a person (the applicant) who 6

is — 7

(a) subject to a vexatious proceedings order 8

prohibiting the person from instituting 9

proceedings, or proceedings of a particular 10

type, under this Act in a court having 11

jurisdiction under this Act; or 12

(b) acting in concert with another person who is 13

subject to an order mentioned in paragraph (a). 14

(2) The applicant may apply to the court for leave to 15

institute proceedings that are subject to the order. 16

(3) The applicant must file an affidavit with the application 17

that — 18

(a) lists all the occasions on which the applicant 19

has applied for leave under this section; and 20

(b) lists all other proceedings the applicant has 21

instituted in any Australian court or tribunal, 22

including proceedings instituted before the 23

commencement of the Family Court 24

Amendment (Commonwealth Reforms) 25

Act 2024 section 68; and 26

application, whether supporting or adverse to 28

the application, that are known to the applicant. 29

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(4) The applicant must — 1

(a) not serve a copy of the application or affidavit 2

on a person unless an order is made under 3

section 219AZL(1)(a); and 4

(b) if the order is made — serve the copy in 5

accordance with the order. 6

219AZK. Dismissing application for leave by person 7

subject to vexatious proceedings order — 8

FLA s. 102QF 9

(1) The court may make an order dismissing an application 10

under section 219AZJ for leave to institute proceedings 11

if it considers the affidavit does not substantially 12

comply with section 219AZJ(3). 13

(2) The court must make an order dismissing an 14

application under section 219AZJ for leave to institute 15

proceedings if it considers the proceedings are 16

vexatious proceedings. 17

(3) The court may dismiss the application without an oral 18

hearing (either with or without the consent of the 19

applicant). 20

(4) The court may make an order under this section in 21

Chambers. 22

219AZL. Granting application for leave by person subject 23

to vexatious proceedings order — FLA s. 102QG 24

(1) Before the court makes an order granting an 25

application under section 219AZJ for leave to institute 26

proceedings, it must — 27

(a) order that the applicant serve the following 28

people with a copy of the application and 29

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affidavit and a notice that the person is entitled 1

to be heard on the application — 2

(i) the person against whom the applicant 3

proposes to institute the proceedings; 4

(ii) any other person specified in the order; 5

and 6

(b) give the applicant and each person described in 7

paragraph (a)(i) or (ii), on appearance, an 8

opportunity to be heard at the hearing of the 9

application. 10

(2) At the hearing of the application, the court may receive 11

as evidence any record of evidence given, or affidavit 12

filed, in any proceedings in any Australian court or 13

tribunal in which the applicant is, or at any time was, 14

involved either as a party or as a person acting in 15

concert with a party. 16

(3) The court may make an order granting the application. 17

(4) An order made under subsection (3) may be made 18

subject to the conditions the court considers 19

appropriate. 20

(5) The court may grant leave only if it is satisfied the 21

proceedings are not vexatious proceedings. 22

69. Section 220A amended 24

Delete section 220A(1)(a) and insert: 25

(a) a child-related order; or 27

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70. Section 231 amended 1

Delete section 231(1) and insert: 2

(1) Subject to this section, an order made under 4

section 226 may be varied or discharged by the court 5

that made the order or the Court. 6

71. Section 233A amended 8

(1) In section 233A delete the definition of order under this Act. 9

(2) In section 233A insert in alphabetical order: 10

relevant order means a child-related order or an order 12

under this Act (as defined in section 223). 13

72. Section 234 amended 15

In section 234(1): 16

(a) in paragraph (a) delete “an order under this Act; or” and 17

insert: 18

a relevant order; or 20

(b) in paragraph (b) delete “an order under this Act” and 22

insert: 23

a relevant order 25

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73. Part 11A inserted 1

After section 236 insert: 2

Part 11A — Restriction on communication of 4

accounts and lists of proceedings 5

236A. Terms used — FLA s. 114P 6

(1) In this Part — 7

communicate means communicate by any means, 8

including by any of the following — 9

(a) publication in a book, newspaper, magazine or 10

other written publication; 11

(b) broadcast by radio or television; 12

(d) broadcast or publication or other 14

communication by means of the internet. 15

(2) In this Part (other than section 236D(1)(b)) — 16

public includes a section of the public. 17

236B. Indictable offence: communication to the public of 18

account of proceedings that identifies parties or 19

others involved in proceedings — FLA s. 114Q 20

(1) A person commits a crime if — 21

(a) the person communicates to the public an 22

account of proceedings under this Act; and 23

(b) the account identifies — 24

(i) a party to the proceedings; or 25

(ii) a witness in the proceedings; or 26

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(iii) a person who is related to, or is 1

associated with, a party to the 2

proceedings; or 3

(iv) a person who is, or is alleged to be, in 4

any other way concerned in the matter 5

to which the proceedings relate. 6

Penalty for this subsection: imprisonment for 7

12 months and a fine of $18 780. 8

Summary conviction penalty for this subsection: a fine 9

of $9 390. 10

(2) Subsection (1) does not apply if the communication 11

is — 12

(a) in accordance with a direction of a court; or 13

(b) otherwise approved by a court. 14

(3) For the purposes of subsection (1)(b), an account of 15

proceedings is taken to identify a person if the account 16

includes material that is sufficient to identify the 17

person to a member of the public. 18

(4) Examples of material referred to in subsection (3) 19

might include the following — 20

(a) a picture, recording, or physical description of 21

the person; 22

(b) a name or title that identifies the person; 23

or works; 25

(d) details of the person’s employment, paid or 26

voluntary; 27

(e) the relationship or other connection between 28

the person and an identified person or business; 29

(f) the person’s political, philosophical or religious 30

beliefs; 31

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(g) any real or personal property associated with 1

the person. 2

236C. Indictable offence: communication to the public of 3

list of court proceedings that refers to names of 4

parties — FLA s. 114R 5

(1) A person commits a crime if the person communicates 6

to the public a list of proceedings, identified by 7

reference to the names of the parties to the 8

proceedings, that are to be dealt with by any of the 9

following under this Act — 10

(a) a court; 11

(b) an officer of a court investigating or dealing 12

with a matter in accordance with this Act, the 13

regulations or the rules; 14

State or of the Commonwealth or of any other 16

State or a Territory. 17

Penalty for this subsection: imprisonment for 18

12 months and a fine of $18 780. 19

Summary conviction penalty for this subsection: a fine 20

of $9 390. 21

(2) Subsection (1) does not apply if — 22

(a) the communication is the publication, by the 23

court, officer or tribunal, of a list of 24

proceedings the court, officer or tribunal is to 25

deal with; or 26

(b) the communication is — 27

(i) in accordance with a direction of a court 28

or otherwise approved by a court; or 29

(ii) in accordance with the rules. 30

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236D. When a communication is not a communication to 1

the public — FLA s. 114S 2

(1) For the purposes of sections 236B(1)(a) and 236C(1), a 3

communication to a person or body is not a 4

communication to the public if — 5

(a) the person or body has a significant and 6

legitimate interest in the subject matter of the 7

communication; and 8

(b) that interest is substantially greater than, or 9

different from, the interests of members of the 10

public generally. 11

(2) Without limiting subsection (1), none of the following 12

is a communication to the public — 13

(a) a private communication between a party to 14

proceedings and one or more persons who are 15

members of the party’s family or friends of the 16

party; 17

(b) a communication of a pleading, transcript of 18

evidence, or other document for use in 19

connection with any of the following 20

proceedings, to a person concerned in those 21

proceedings — 22

(i) proceedings in a court; 23

(ii) proceedings before an officer of a court 24

investigating or dealing with a matter in 25

accordance with this Act, the 26

regulations or the rules; 27

(iii) proceedings in a tribunal established by 28

or under a law of this State or of the 29

Commonwealth or of any other State or 30

a Territory; 31

evidence, or other document, to a prescribed 33

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 73

page 109

authority of a State or Territory that has 1

responsibilities relating to the welfare of 2

children; 3

(d) a communication of a pleading, transcript of 4

evidence, or other document, to — 5

(i) a body that is responsible for 6

disciplining members of a profession in 7

a State or Territory; or 8

(ii) a person concerned in disciplinary 9

proceedings against a member of a 10

profession in a State or Territory (being 11

proceedings before a body that is 12

responsible for disciplining members of 13

that profession in that State or 14

Territory); 15

(e) a communication of a pleading, transcript of 16

evidence, or other document, to a body that 17

grants assistance by way of legal aid for the 18

purpose of facilitating a decision as to whether 19

assistance by way of legal aid should be 20

granted, continued or provided in a particular 21

case; 22

(f) a communication of material intended primarily 23

for use by the members of any profession 24

(being part of a series of law reports or any 25

other publication of a technical character); 26

(g) a communication of an account of proceedings 27

to a member of a profession in connection 28

with — 29

(i) the person’s practice of that profession; 30

or 31

(ii) any form of professional training in 32

which that person is involved; 33

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 74

page 110

(h) a communication of an account of proceedings 1

to a student in connection with the student’s 2

studies. 3

236E. Consent of DPP required to commence 4

proceedings — FLA s. 114T 5

Proceedings for an offence against section 236B(1) 6

or 236C(1) must not be commenced without the written 7

consent of the DPP. 8

74. Section 237 amended 10

(1) In section 237(1): 11

(a) delete “sections 205SB and 242,” and insert: 12

section 219AZA(6), 14

(b) delete “is to” and insert: 16

must 18

(2) In section 237(2) delete “(6A) and (6)” and insert: 20

(6A), (6) and (7) 22

(3) After section 237(6) insert: 24

(7) The court must not make an order under subsection (2) 26

against a case guardian unless the court is satisfied that 27

one or more acts or omissions of the case guardian 28

relating to the proceedings are unreasonable or have 29

delayed the proceedings unreasonably. 30

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 75

page 111

75. Section 238 amended 1

In section 238(1)(b) delete “107 or 108” and insert: 2

107, 107A, 108 or 108A 4

76. Section 240 amended 6

Delete section 240(2) and (3) and insert: 7

(2) Subsection (3) applies if — 9

(a) a party to proceedings to which this section 10

applies makes an offer to the other party to the 11

proceedings to settle the proceedings; and 12

(b) the offer is made in accordance with the rules. 13

(3) The terms of the offer must not be disclosed to a court 14

in which the proceedings are being heard except for the 15

purposes of the consideration by the court of whether it 16

should make an order as to costs under section 237(2) 17

and the terms of any such order. 18

77. Sections 242 and 243 deleted 20

Delete sections 242 and 243. 21

78. Section 243A replaced 22

Delete section 243A and insert: 23

243A. Making arrests under this Act or warrants — 25

FLA s. 122A 26

(1) This section and section 243B apply to any of the 27

following persons (the arrester) who is authorised by 28

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 78

page 112

this Act, or by a warrant issued under this Act or under 1

the rules, to arrest another person (the arrestee) — 2

(a) the Marshal of the Court; 3

(b) a police officer. 4

(2) In the course of arresting the arrestee, the arrester — 5

(a) must not use more force, or subject the arrestee 6

to greater indignity, than is necessary and 7

reasonable to make the arrest or to prevent the 8

arrestee’s escape after the arrest; and 9

(b) must not do anything that is likely to cause the 10

death of, or grievous bodily harm to, the 11

arrestee unless the arrester reasonably believes 12

that doing that thing is necessary to protect life 13

or prevent serious injury to another person 14

(including the arrester); and 15

fleeing — must not do a thing described in 17

paragraph (b) unless — 18

(i) the arrester reasonably believes that 19

doing that thing is necessary to protect 20

life or prevent serious injury to another 21

person (including the arrester); and 22

(ii) the arrestee has, if practicable, been 23

called on to surrender and the arrester 24

reasonably believes that the arrestee 25

cannot be arrested in any other way. 26

(3) When arresting the arrestee, the arrester must inform 27

the arrestee of the grounds for the arrest. 28

(4) It is sufficient if the arrestee is informed of the 29

substance of those grounds, not necessarily in precise 30

or technical language. 31

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 78

page 113

(5) Subsection (3) does not apply if — 1

(a) it is reasonable, in the circumstances, to assume 2

that the arrestee knows the substance of the 3

grounds for the arrest; or 4

(b) the arrestee’s actions make it impracticable for 5

the arrester to inform the arrestee of those 6

grounds. 7

243B. Powers to enter and search premises, and stop 8

conveyances, for making arrests under this Act or 9

warrants — FLA s. 122AA 10

(1) In this section — 11

arrestee has the meaning given in section 243A(1); 12

arrester has the meaning given in section 243A(1); 13

premises includes a place and a conveyance. 14

(2) If the arrester reasonably believes the arrestee is on 15

premises, the arrester may enter the premises, using 16

such force as is necessary and reasonable in the 17

circumstances, at any time of the day or night for the 18

purpose of searching the premises for the arrestee or 19

arresting the arrestee. 20

(3) However, the arrester must not enter a dwelling house 21

between 9 pm one day and 6 am the next day unless the 22

arrester reasonably believes that it would not be 23

practicable to arrest the arrestee there or elsewhere at 24

another time. 25

(4) If the arrester may enter and search a conveyance under 26

subsection (2) (disregarding subsection (3)), the 27

arrester may, for the purposes of effecting the entry and 28

search, stop and detain the conveyance. 29

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 79

page 114

(5) If the arrester stops, detains, enters or searches a 1

conveyance under this section for the purposes of 2

arresting the arrestee, the arrester — 3

(a) may use such assistance as is necessary; and 4

(b) must search the conveyance in a public place or 5

in some other place to which members of the 6

public have ready access; and 7

is necessary and reasonable to search it; and 9

(d) may use such force as is necessary and 10

reasonable in the circumstances, but must not 11

damage the conveyance by forcing open a part 12

of the conveyance unless — 13

(i) the person (if any) apparently in charge 14

of the conveyance has been given a 15

reasonable opportunity to open that part; 16

or 17

(ii) it is not possible to give that person such 18

an opportunity. 19

79. Section 244 amended 21

In section 244(3): 22

(a) after paragraph (f) insert: 23

(fa) the prevention or termination of vexatious 25

proceedings; and 26

(b) in paragraph (j)(iii) delete “205O or 205S;” and insert: 28

205H, 205J or 205K; 30

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 80

page 115

case guardian 3

80. Section 245 amended 5

In section 245(4) delete “subsection (5),” and insert: 6

section 65AC(4)(a) and subsection (5), 8

81. Section 247 amended 10

After section 247(3) insert: 11

(4) Schedule 2 Division 4 has effect in relation to the 13

amendments made by the Family Court Amendment 14

(Commonwealth Reforms) Act 2024. 15

82. Schedule 2 Division 4 inserted 17

At the end of Schedule 2 insert: 18

Division 4 — Provisions for Family Court Amendment 20

(Commonwealth Reforms) Act 2024 21

14. Application of amendments 22

(1) In this clause — 23

commencement day means the day on which the Family 24

Court Amendment (Commonwealth Reforms) Act 2024 25

Part 2 comes into operation; 26

old Act means the Family Court Act 1997 as in force 27

immediately before commencement day. 28

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 82

page 116

(2) Subject to subclause (8), the insertion by the Family Court 1

Amendment (Commonwealth Reforms) Act 2024 section 5(2) 2

of the definition of family law practice and procedure 3

provisions applies, and the amendments made by the Family 4

Court Amendment (Commonwealth Reforms) Act 2024 5

sections 6(1), 23, 24, 25, 26, 28, 31, 32, 33, 34, 36, 38, 39, 6

52, 53, 54, 55, 57 and 64 apply, in relation to the following 7

proceedings — 8

(a) proceedings instituted on or after commencement 9

day; 10

(b) proceedings instituted before, and not finally 11

determined by, commencement day, other than 12

proceedings in respect of which a final hearing has 13

commenced by commencement day. 14

(3) So far as the amendments made by the Family Court 15

Amendment (Commonwealth Reforms) Act 2024 16

sections 5(6), 6(2) and 7 apply in relation to proceedings, 17

they apply in relation to — 18

(a) proceedings instituted on or after commencement 19

day; and 20

(b) proceedings instituted before, and not finally 21

determined by, commencement day, other than 22

proceedings in respect of which a final hearing has 23

commenced by commencement day. 24

(4) The amendments made by the Family Court Amendment 25

(Commonwealth Reforms) Act 2024 section 9 are taken to 26

apply on and from 1 September 2021. 27

(5) Section 33B, as inserted by the Family Court Amendment 28

(Commonwealth Reforms) Act 2024 section 11, applies in 29

relation to the performance of a function or the exercise of a 30

power of a registrar of the Court, before, on or after the day 31

on which the Family Court Amendment (Commonwealth 32

Reforms) Act 2024 section 11 comes into operation, 33

regardless of whether the relevant proceeding commenced 34

before, on or after commencement of that section. 35

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 82

page 117

(6) The amendments made by the Family Court Amendment 1

(Commonwealth Reforms) Act 2024 sections 13 and 14 2

apply in relation to proceedings instituted on or after 3

commencement day. 4

(7) The amendment made by the Family Court Amendment 5

(Commonwealth Reforms) Act 2024 section 19 applies in 6

relation to a thing said or an admission made if the thing or 7

admission is to be admitted, on or after commencement day, 8

into proceedings (whether those proceedings are instituted 9

before, on or after commencement day). 10

(8) Section 69A, as inserted by the Family Court Amendment 11

(Commonwealth Reforms) Act 2024 section 31, applies on 12

and from commencement day. 13

(9) The amendment made by the Family Court Amendment 14

(Commonwealth Reforms) Act 2024 section 37 applies in 15

relation to final parenting orders whether the orders came 16

into force before, or come into force on or after, 17

commencement day. 18

(10) The amendments made by the Family Court Amendment 19

(Commonwealth Reforms) Act 2024 sections 42 to 46 apply 20

to — 21

(a) a child taken or sent from the State on or after 22

commencement day; or 23

(b) a child taken or sent from the State before 24

commencement day, if the period specified in the 25

consent or order in accordance with which the child 26

was taken or sent — 27

(i) ended after commencement day; or 28

(ii) was extended so that it ended after 29

commencement day. 30

(11) The amendments made by the Family Court Amendment 31

(Commonwealth Reforms) Act 2024 section 58 apply in 32

relation to revivals, variations and suspensions of orders, 33

injunctions and arrangements if the revivals, variations and 34

suspensions are made under section 176 on or after 35

commencement day. 36

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 82

page 118

(12) Despite the repeal of section 202K of the old Act made by 1

the Family Court Amendment (Commonwealth Reforms) 2

Act 2024 section 62, section 202K of the old Act continues 3

to apply on and after commencement day, in relation to 4

orders made before commencement day, as if the repeal had 5

not happened. 6

(13) Despite the amendments made by the Family Court 7

Amendment (Commonwealth Reforms) Act 2024 8

sections 65, 68, 77 and 79(a), the rules that were in force 9

immediately before commencement day under the old Act 10

(to the extent the rules relate to vexatious proceedings) 11

continue to apply on and after commencement day in 12

relation to proceedings that were pending in a court 13

immediately before commencement day. 14

(14) The amendments made by the Family Court Amendment 15

(Commonwealth Reforms) Act 2024 sections 65, 68, 77 16

and 79(a) do not affect the validity of any orders that were 17

made before commencement day under the rules (to the 18

extent the rules relate to vexatious proceedings). 19

(15) The amendments made by the Family Court Amendment 20

(Commonwealth Reforms) Act 2024 sections 68 and 74(1) 21

apply in relation to the following proceedings — 22

(a) proceedings instituted on or after commencement 23

day; 24

(b) proceedings instituted before, and not finally 25

determined by, commencement day. 26

(16) Part 11A of this Act, as inserted by the Family Court 27

Amendment (Commonwealth Reforms) Act 2024 section 73, 28

applies in relation to acts or omissions occurring on or after 29

commencement day. 30

(17) The amendments made by the Family Court Amendment 31

(Commonwealth Reforms) Act 2024 section 74(2) and (3) 32

apply in relation to persons who become case guardians in 33

proceedings on or after commencement day, whether the 34

proceedings were instituted before, on or after that day. 35

Family Court Amendment (Commonwealth Reforms) Bill 2024

Family Court Act 1997 amended Part 2

s. 82

page 119

(18) The amendments made by the Family Court Amendment 1

(Commonwealth Reforms) Act 2024 section 76 apply in 2

relation to offers made before, on or after commencement 3

day. 4

(19) The repeal of section 242 by the Family Court Amendment 5

(Commonwealth Reforms) Act 2024 section 77 — 6

(a) applies to proceedings instituted before, on or after 7

commencement day; but 8

(b) does not affect any action taken under that section 9

before commencement day. 10

(20) Regulations that were in force for the purposes of 11

section 243(8)(aa) of the old Act continue in force on and 12

after commencement day as if they were regulations in force 13

for the purposes of section 236D(2)(c). 14

(21) Sections 243A and 243B, as inserted by the Family Court 15

Amendment (Commonwealth Reforms) Act 2024 section 78, 16

apply in relation to arrests — 17

(a) authorised by this Act on or after commencement 18

day; and 19

(b) authorised by warrants issued on or after 20

commencement day. 21

(22) The Governor may make regulations prescribing matters of 22

a transitional nature (including prescribing any saving or 23

application provisions) relating to the amendments or 24

repeals made by any or all of the following provisions of the 25

Family Court Amendment (Commonwealth Reforms) 26

Act 2024 — 27

(a) section 5(1), in so far as that subsection deletes the 28

definitions of community service order, 29

contravened an order, order under this Act 30

affecting children, primary order and reasonable 31

excuse for contravening; 32

(b) section 5(2), in so far as that subsection inserts 33

definitions of child-related order, contravene and 34

reasonable excuse; 35

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 2 Family Court Act 1997 amended

s. 82

page 120

or 79(b). 2

(23) To avoid doubt, the regulations made under subclause (22) 3

cannot do the following — 4

(a) create an offence or civil penalty; 5

(b) provide powers of — 6

(i) arrest or detention; or 7

(ii) entry, search or seizure; 8

(d) directly amend the text of the Family Court 10

Amendment (Commonwealth Reforms) Act 2024 or 11

this Act. 12

Note: The headings to the sections listed in the Table are to read as set out in 14

the Table. 15

Table 16

Section Section heading

s. 33A Engagement of consultants and other persons

s. 34 Director of Court Counselling has functions of family consultants — FCFCAA s. 278

s. 34A Director of Court Counselling may delegate powers and functions that relate to family consultants — FCFCAA s. 279

s. 34B Director of Court Counselling may give directions that relate to family services functions — FCFCAA s. 280

s. 34C Director of Court Counselling may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner — FCFCAA s. 281

s. 34D Director of Court Counselling may engage persons to perform family counselling services or family dispute resolution services

s. 46A Change of venue — FCFCAA s. 65

Family Court Amendment (Commonwealth Reforms) Bill 2024

Other Acts amended Part 3

s. 83

page 121

Part 3 — Other Acts amended 1

83. Adoption Act 1994 amended 2

(1) This section amends the Adoption Act 1994. 3

(2) Delete section 124(2)(b) and insert: 4

(b) a communication to a person or body that, 6

under the Family Court Act 1997 7

section 236D(1), is not a communication to the 8

public for the purposes of sections 236B(1)(a) 9

and 236C(1) of that Act; or 10

Act 1997 section 236D(2), is not a 12

communication to the public. 13

(3) After section 124(2) insert: 15

(2A) In subsection (2) — 17

communicate has the meaning given in the Family 18

Court Act 1997 section 236A(1). 19

84. Surrogacy Act 2008 amended 21

(1) This section amends the Surrogacy Act 2008. 22

(2) In section 42(1) in the Table delete “s. 243”. 23

(3) After section 42(1) insert: 24

(1A) The Family Court Act 1997 applies as if — 26

(a) the reference in section 236B(1)(a) of that Act 27

to proceedings under that Act referred also to 28

proceedings or a part of proceedings in which 29

Family Court Amendment (Commonwealth Reforms) Bill 2024

Part 3 Other Acts amended

s. 84

page 122

the court exercises jurisdiction conferred on it 1

by this Act; and 2

(b) the reference in section 236C(1) of that Act to 3

proceedings that are to be dealt with by the 4

court under that Act referred also to 5

proceedings or a part of proceedings that are to 6

be dealt with by the court in the exercise of 7

jurisdiction conferred on it by this Act. 8