ByLawyers News and Updates

Defaulters List – FED/NSW

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Family Law Defaulters List – Sydney Registry pilot

The Sydney Registry of the Federal Circuit and Family Court of Australia (FCFCOA) is operating a Defaulters’ List, as a pilot project, from October 2024.

The purpose of the list is to ensure compliance with the relevant Family Law Rules, and with any case management orders and directions made by the court in family law or child support proceedings.

The list is governed by the FCFCOA’s Family Law Practice Direction: Defaulters’ List, which:

  • sets out when a party is deemed to be in default;
  • provides that the onus is on the defaulting party to show cause why a sanction or penalty should not be applied; and
  • notes the powers of the court to sanction and penalise parties, including as to costs.

In considering a show cause application the court can consider:

  • the interests of the parties in the proceedings and the administration of justice by the court more generally;
  • whether the application for relief has been made promptly;
  • whether the failure to comply was intentional;
  • whether there is a good explanation for the failure;
  • the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
  • whether the failure to comply was caused by the party or their legal representative;
  • whether the trial date or the likely trial date can still be met if relief is granted;
  • the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party;
  • whether all parties consent to the step being taken after the specified time;
  • any other matter that the court consider relevant.

See the By Lawyers Family Law – Children and Family Law – Property Settlement commentaries for more information about dealing with breaches of orders.

Parenting – FED

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The significant changes to family law parenting applications have been incorporated into the By Lawyers Family Law – Children guide.

The amendments to the Family Law Act 1975 and to the Court’s procedure arise under two separate pieces of legislation that commenced on 6 May 2024.

Family Law Amendment Act 2023

The amendments to how parenting orders are dealt with under the Family Law Act 1975 (Cth), include:

  • a refined list of factors for the court to consider when determining the best interests of the child, the emphasis now being on safety and the needs of individual children;
  • a new subsection requiring the court to consider the right of an Aboriginal or Torres Strait Islander child to connect with their family, community, culture, country, and language;
  • provisions that allow the court to consider any views expressed by the child to the independent children’s lawyer;
  • the repeal of the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions;
  • codification of the rule in Rice & Asplund that requires a court to be satisfied that a significant change in circumstances has occurred before varying final parenting orders; and
  • a mechanism for the court to address repetitive filing of applications by one party to oppress another party.

Family Law Amendment (Information Sharing) Act 2023

  • establishes a new regime for information about domestic violence, children at risk, and firearms licensing to be shared between the relevant State authorities and the Federal Circuit and Family Court of Australia;
  • makes such material admissible in parenting matters, subject to exceptions and safeguards, for example legal professional privilege.

Publication updates

The Family Law – Children publication has been updated accordingly. To assist firms in understanding and transitioning to the changes a heading Changes effective 6 May 2024 has been added under the Overview in the commentary and on the matter plan, with a concise summary of the amendments and a Comparative table detailing the changes to the Family Law Act effective 6 May 2024 has been added as an Appendix to the commentary, with a link on the matter plan.

101 Family Law Answers has also been updated. Summaries and links to Rice & Asplund and related cases remain available.

Our family law authors and our in-house team will continue to monitor developments and update the publications further as the jurisprudence around these amendments develops.

101 Family Law Answers – FED

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The By Lawyers reference manual 101 Family Law Answers has been updated with recent cases in the following sections:

Arbitration in family law

See Palgrove & Palgrove [2020] FCCA 846 at [12]-[29] for a discussion of arbitrability and the court’s jurisdiction to facilitate arbitration.

Injunctions

Dunworth & Falletti [2020] FamCA 178 where the balance of convenience favoured the grant of restraint.

Rahman & Rahman [2020] FamCA 156 where the husband’s appeal failed against an injunction that restrained him from leaving Australia until a lump sum payment was made.

Orders – Variation and the rule in Rice & Asplund

See Findlay & Reis [2020] FCCA 425 for an application to vary a parenting order, which was dismissed in accordance with the principles in Rice & Asplund.

Relocation

Franklyn & Franklyn [2019] FamCAFC 256 where a mother’s unilateral relocation was allowed on appeal, as she was still able to adhere to interim consent orders for the father’s fortnightly contact.

Soulos & Sorbo [2019] FamCAFC 231 where the father’s appeal was allowed to set aside the parenting orders permitting the mother and child to relocate overseas.

Section 75(2) factors – Disparity in financial positions

In Metzer & Metzer [2020] FCCA 119 the wife was unable to establish a 10% likely loss of earnings on the evidence presented. An adjustment of 2% only was made in favour of the wife.

Five factors were listed at [182] that are usually considered when determining residual earning capacity:

  1. physical capacity, including the reasonable restrictions required by reason of injuries;
  2. psychological capacity, taking into account any necessary restrictions, of which there was no evidence in this case;
  3. vocational capacity, for suitable jobs within suitable occupations, including all of her education, training and experience and transferable skills;
  4. labour market, including factors such as the existence of such jobs in the real world labour market which is to be considered, including any barriers to entry and competitiveness including by reason of work history and age; and
  5. earnings, including the likely range of earnings for such available jobs by reference to reliable published labour market statistics or current labour market research information.

101 Family Law Answers is a valuable resource for practitioners. It is available as a related guide and in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

Retaining children overseas – Family Law – FED

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Retaining children overseas is now an offence under the Family Law Act 1975 (Cth).

Existing offences

Subdivision E of Division 6 of Part VII of the Act provides for the ‘Obligations under parenting orders relating to taking or sending children from Australia’. Sections 65Y and 65Z already provide that it is an offence to take or send a child overseas if there is a parenting order in force, or sought in a live application, unless there is written and authenticated consent of each person in whose favour the order was made or sought, or it was done in accordance with a court order. The penalty for contravention is imprisonment for three years.

As part of the Civil Law and Justice Legislation Amendment Act 2018 subdivision E has been amended, with new sections added that deal with retention of children overseas. These amendments have effect from 26 April 2019. Sections 65Y and 65Z have been renamed and re-organised in the Act, but essentially remain the same. The only addition is an exception described below.

New offences

Under the amendments, any person retaining children overseas now commits an offence pursuant to the new sections 65YA and 65ZAA, unless they are doing so in accordance with authenticated consent in writing, or a court order. This applies whether or not the person originally took or sent the child outside Australia. The penalty for contravention is imprisonment for three years.

Statutory exception

There is one legislative exception to the offences created under subsections 65Y(1), 65Z(1), 65YA(1) and 65ZAA(1). The subsections do not apply if the person who takes, sends, or retains the child outside Australia believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as the person perceives them. This applies regardless of whether or not the person who takes, sends, or retains the child is or was the party to the proceedings.

Commentary updated

The Children commentary in the By Lawyers Family Law guide has been updated accordingly.

 

Family Law Act amendments – FED

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Family Law Act amendments, contained in the Family Law Amendment (Family Violence and Other Measures) Act 2018, commenced on 1 September 2018.

By Lawyers have updated the Children and Property Settlement commentaries  in our Family Law Guide to reflect these amendments. Broadly speaking, the changes are jurisdictional and procedural, with particular emphasis on enabling the court to better address issues with family violence.

The amendments include:

Transferring property proceedings when the value of property exceeds $20,000

The legislation provides that if property proceedings are issued in a court of summary jurisdiction and the value of the property exceeds $20,000, then if the respondent seeks different orders than the applicant and one of the parties does not consent to the court dealing with the application, then the matter must be transferred to the Family Court/Federal Circuit Court, or to the relevant Supreme Court: see: s 46 and s 46A. In practice, matters are usually transferred to the Federal Circuit Court.

As a result of the amendments, these sections enable State and Territory regulations to prescribe an amount higher than $20,000. This applies to all proceedings instituted from 1 September.

Proceedings with no reasonable prospects of success

Section 45A provides that:

  1. The court may make a decree for one party against another in relation to the whole or any part of proceedings if the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings;
  2. The proceedings do not need to be hopeless or bound to fail to have no reasonable prospect of success;
  3. The court may make such a decree of its own initiative or upon application by a party;
  4. The court may make a costs order as a result of the decree; and
  5. The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.

Section 118, which previously provided for the court to summarily dismiss frivolous or vexatious proceedings was repealed, effective from 1 September.

Interim parenting/Family violence orders

Section 69ZL provides that the court may give reasons in short form for a decision it makes in relation to an interim parenting order.

Section 68P(2A) which relates to the explanation provided by the court when an order is made which is inconsistent with a family violence order, provides that an explanation is not required to be given where the court is satisfied that it is in the best interests of the child not to receive an explanation.

The 21-day suspension of family law orders by a family violence order previously provided for in s 68T(1)(b) no longer applies. It has been replaced by two further options. Any revival, variation or suspension of family law orders now ceases to have effect at the earliest of:

  • the time the interim order stops being in force; and
  • the time specified in the interim order as the time at which the revival, variation or suspension ceases to have effect; and
  • the time the order, injunction or arrangement is affected by an order (however described) made by a court, under s 68R or otherwise, after the revival, variation or suspension.

See the commentaries in the By Lawyers Family Law Guide for more information.

Reference manual – 101 Family Law Answers – commentary added

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Commentary has been added to the By Lawyers 101 Family Law Answers reference manual in the Children chapter:

Orders – Variation and the rule in Rice & Asplund
To set aside or vary final parenting orders, parties must meet the threshold test set out in Rice v Asplund (1979) FLC 90-725. This case provides that where final parenting orders have been made, the court must establish a significant change in circumstances before it sets aside or varies final orders. The rationale is founded on the ‘best interests principle’ and the public interest for parties to not continuously re-litigate parenting matters. …

There is no specific timeframe in which a significant change of circumstance must or must not be shown. It depends on the individual case. There was consideration of the rule in SPS & PLS [2008] FamCAFC 16. In that case the court said at [48] … At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle” … The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order. …

Other useful cases include:

 

Family Law Rules – Amendment

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ALERT – FROM 1 MARCH 2018 – APPLICATION FOR CONSENT ORDERS

Family Law Amendment (2018 Measures No. 1) Rules 2018

Parenting matters: Changes to consent orders and submitting notices. New forms for abuse/violence.

Financial matters: Superannuation interest – kit no longer required. Must file proof of value of the interest with application.

Family Law – Grandparents order and commentary

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New commentary on parenting orders in relation to grandparents has been added to the Children publication … Grandparents are entitled to apply for parenting orders pursuant to s 65C, which provides: A parenting order in relation to a child may be applied for by … (ba)  a grandparent of the child; or … Whilst grandparents specifically have standing to make an application under the Family Law Act, it does not automatically mean orders will be granted.  As with any parenting order, the court will always consider an application by the grandparents through the prism of what is in the best interests of the child: s 60CC.

Also, a new draft order has been added to the library of Children Orders: “Spending time with grandparents”.

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