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:
- 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;
- The proceedings do not need to be hopeless or bound to fail to have no reasonable prospect of success;
- The court may make such a decree of its own initiative or upon application by a party;
- The court may make a costs order as a result of the decree; and
- 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Section 118, which previously provided for the court to summarily dismiss frivolous or vexatious proceedings was repealed, effective from 1 September.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.