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Jacky Campbell, November 2013

Introduction to CCH Australian Family Law Act 1975 book

Introduction

The most sweeping change to the legislation in this book since the publication of the last edition was the renaming of the Federal Magistrates Court of Australia as the Federal Circuit Court of Australia. This received widespread publicity. Less publicised was the insertion of two further Parts into the Family Law Act 1975 (“the Act”). There are now 28 Parts to the Act. The original version of the Act passed by Federal Parliament in 1975, had only 12 Parts. The new Pts XI and XIB cover suppression and non-publication orders, and vexatious proceedings.

Federal Circuit Court of Australia

The Federal Circuit Court of Australia commenced to operate on 12 April 2013. On that day, the former Federal Magistrates of the Federal Magistrates Court of Australia became Judges of the Federal Circuit Court of Australia. The Federal Magistrates Court Rules 2001 were renamed as the Federal Circuit Court Rules 2001. As a result of these changes numerous consequential but minor amendments were required to the legislation in this book.

Suppression and non-publication orders

The Access to Justice (Federal Jurisdiction) Amendment Act 2012 (“the 2012 Amendment Act”) introduced a scheme for all four Federal Courts including the Family Court and the Federal Circuit Court, for the exercise of those Courts’ powers to make:

  • Suppression orders – which prohibit or restrict the disclosure of information, by publication or otherwise in proceedings; and
  • Non-publication orders – which prohibit or restrict the publication of information in proceedings.

According to the Explanatory Memorandum to the 2012 Amendment Act, the aim is to ensure that suppression and non-publication orders are only made where necessary on specific grounds, taking into account the public interest in open justice, and in terms that clearly define their scope and timing.

The Family Law Act has a new Pt XIA which deals with suppression orders and non-publication orders. Prior to the 2012 Amendments, the Family Court already had power to make such orders under s 34 of the Act and under that Court’s implied powers. Section 34 provided that the “Court has power…to make orders of such kinds…as the Court considers appropriate”. Section 121(1) is still in the Act. This section restricts the publication or dissemination to the public or to a sector of the public by any means, of any account of any proceedings or part of any proceedings under the Act, that identifies a party to the proceedings or person who is related to or associated with a party to the proceedings or a witness to the proceedings. The exceptions are set out in s 121(9).

Under s 102PB of the 2012 Amendment Act, s 34 of the Act (and the similarly worded s 15 of the Federal Circuit Court of Australia Act) can no longer be used to prohibit or restrict the publication or other disclosure of information in connection with proceedings.

The new Pt XIA and s 121 are intended to operate in parallel. The interaction of s 121 and Pt XIA was explained in the Explanatory Memorandum:

Hence, a party or witness to proceedings under the Family Law Act 1975 could apply for an order prohibiting the publication of information that would otherwise be publishable because it fell within one of the exceptions in s  121(9).  In other words, an order under Pt XIA could, in a particular case, extend the prohibitions on publishing identifying information set out in s 121.

Additionally, under the provisions of Pt XIA, a suppression or
non-publication order could also cover other kinds of information not relating to the identity of a party or witness to proceedings.  This is because s 102PF sets out additional grounds for making suppression or non-publication orders, such as when the order is necessary to prevent prejudice to national security

It will be possible, therefore, for a court to make an order prohibiting the publication of certain information under Pt XIA, even though the publication of that information is not an offence under s 121. 

Section 121 will continue to apply to create an offence for the publication of identifying information that is not subject to one of the exceptions in s 121(9) of the Family Law Act 1975.  Since orders will only be made under Part XIA that will further prohibit publication (not relax the requirements under s 121), these provisions can operate together without being inconsistent.  As such, these provisions are intended to operate side-by-side and not interfere with each other.

A non-publication order means:

an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)(s 102P).

A “party to proceedings” is widely defined and includes “any person named in evidence given in proceedings” (s102P). “Publish” is defined in s 102P to mean:

disseminate or provide access to the public or a section of the public by any means, including by:

(a)          publication in a book, newspaper or magazine or other written publication; or

(b)          broadcast by radio or television; or

(c)          public exhibition; or

(d)          broadcast or publication by means of the internet.

A suppression order is defined in s 102P as “an order that prohibits or restricts the disclosure of information (by publication or otherwise).”

In deciding whether to make a suppression order or a non-publication order, the Court “must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.” (s 102 PD).

By making a suppression order or a non-publication order, a court may, under s 102PE(1), prohibit or restrict the disclosure of:

(a)     information tending to reveal the identity of or otherwise concerning any party to or witness in the proceedings or any person who is related to or otherwise associated with any party to or witness in the proceedings; or

(b)     information that relates to the proceedings and is:

                            (i)          information obtained by the process of discovery; or

                           (ii)          information produced under a subpoena; or

                          (iii)          information lodged with or filed in the court.

The Family Court is also empowered by s 102PE(2) to make such orders as it considers appropriate to give effect to an order under s 102PE(1). According to the Explanatory Memorandum, this gives courts the clear power to make a “take down” order. A “take down” order directs a publisher to remove certain information the subject of the suppression or non-publication order. It could, for example, be directed to website publishers or individuals who had posted content on the internet.

The grounds for making a suppression or non-publication order are one or more of the matters set out in s 102PF:

(a)     the order is necessary to prevent prejudice to the proper administration of justice;

(b)     the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)     the order is necessary to protect the safety of any person;

(d)     the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).

Section 102PK(1) imposes a penalty for an offence of imprisonment for 12 months, 60 penalty units or both. A person who breaches a non-publication or suppression order can either be punished for committing an offence under s 102PK(1) or for contempt of court, but not for both. Pt XIIIA does not apply to a contravention of an order under s 102PE. Pt XIIIA is a separate regime for failing to comply with orders made under the Act (other than those involving children).

Vexatious Proceedings

The 2012 Amendment Act introduced a new framework for the four Federal Courts when dealing with “vexatious proceedings” brought by persons who have frequently instituted or conducted vexatious proceedings in Australian Courts and tribunals, or who are acting in concert with others who have done so. The intention is to harmonise laws across Australia and to discourage forum shopping. Western Australia, Queensland, the Northern Territory and New South Wales have enacted similar legislation. The 2010 Amendment Act means that the legislative authority to support the exercise of the power of courts to deal with vexatious litigants is clearer and more comprehensive.

A new Pt XIB was inserted into the Act. The definition of vexatious proceedings includes:

(a) proceedings that are an abuse of the process of a court or tribunal; and

(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and

(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose (s 102Q).

The threshold which needs to be met before an order can be made is set out in s 102QB(1). The court must be satisfied that:

(a)     a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)     a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

The types of orders which can be made are set out in s 102QB(2).

(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;

(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

(c) any other order the court considers appropriate in relation to the person.

An applicant subject to a vexatious proceedings order seeking leave to institute proceedings, must file an affidavit, as required by s 102QE(3), which:

(a) lists all the occasions on which the applicant has applied for leave under this section; and

(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

Section 118 was repealed and a new s 118 excludes the parts which are dealt with in Pt XIB. The new s 118 simply provides:

“The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:

(a) dismiss the proceedings; and

(b) make such order as to costs as the court considers just.”

Therefore, the making of an order that a litigant is vexatious, is dealt with entirely under the new Pt XIB.

Transfer of proceedings from courts of summary jurisdiction

The $5 million monetary limit on family law magistrates in the Magistrates Court of Western Australia has been removed. Like judges of the Federal Circuit Court whose monetary limit was removed on 1 July 2006, they can hear cases of unlimited financial value.

Minor changes were made regarding the transfer of cases from courts of summary jurisdiction.

Amendments to Federal Circuit Court Rules

A new costs schedule applied from 12 April 2013.

A new schedule 3 to the Federal Circuit Court Rules includes one extra rule from the Family Law Rules which applies to the Federal Circuit Court by virtue of r 1.05 of the Family Circuit Court Rules. This is r 6.15 of the Family Law Rules which deals with the progress of a property case or an application for the enforcement of a financial application after the death of a party.

Amendments to Family Law Rules

A new costs schedule was introduced and applied from 1 January 2013. A new Pt 22.10 has been inserted which applies to costs orders in appeals.

New rules apply as a result of the insertion of Pts XIA and XIB into the Act. Rule 11.04(1) provides:

If the court is satisfied that a party has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:

(a)       dismiss the party’s application; and

(b)       order that the party may not, without the court’s permission, file or continue an application.

An order under r 11.04(1) can be made of the court’s own motion or on the application of a party, the Registry Manager of the Family Court of Australia or the Executive Officer of the Family Court of Western Australia. (r 11.04(2)). The applicant must have had a “reasonable opportunity to be heard” (r 11.04(3)).

The matters to be covered in an affidavit under r 5.19(e)) in support of an application to suppress a judgment have been expanded to include evidence relating to one or more of the grounds in s 102PF(1) of the Act on which the application is made.

Conclusion

The past year has not been as difficult as previous years for legal practitioners practising in family law to keep up with legislative changes. Although the name change to the Federal Circuit Court of Australia means that there have been many minor changes, the operation of the legislation is not substantially affected.

The insertion of new Pts XIA and XIB into the Act are important. Although these issues do not arise every day legal practitioners need to know that they are there.

Jacky Campbell

Partner

University qualifications

Master of Laws, Monash University

Bachelor of Laws, Monash University

Bachelor of Arts, Monash University

Graduate Diploma of Professional Writing, Deakin University

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Email Jacky Campbell
jcampbell@fortefamilylawyers.com.au

Connect on LinkedIn

Publications
To read Jacky Campbell’s articles and papers click here.

In 2020, Jacky was recognised as a leading family lawyer in Melbourne by Doyle’s Guide to the Australian Legal Market as well as one of Melbourne’s leading family lawyers in High-value and Complex Property matters, and a recommended lawyer in parenting matters. Jacky was also a recommended lawyer in the Doyle’s leading family and divorce lawyers in Australia. Jacky writes extensively on complex aspects of family law and her up-to-date knowledge means that she is able to provide accurate information about the law. She combines this with offering strategic advice to clients and guidance as to the best approach to take in their particular circumstances.

Jacky wrote her Masters thesis on the relationship of bankruptcy and family law. She continues to have a special interest in matters involving bankruptcy, insolvency, liquidation and receivership.

Jacky received the Law Institute of Victoria Rogers Legal Writing Award 2004—for the article “Splitting the Super…and Selling the Home”. She is experienced with complex superannuation interests such as defined benefit funds and self managed superannuation funds.

Jacky is the consultant editor of Wolters Kluwer/CCH Australian Family Law and Practice and contributing author to Wolters Kluwer/CCH Australian Family Law and Practice to the Property, Spousal Maintenance, Financial Agreements, Maintenance Agreements, Procedure and Precedents tabs. She writes several chapters of the Wolters/Kluwer CCH Australian Master Family Law Guide, and is the author of the family law chapters in the Thomson-Reuters Australian Financial Planning Handbook and in the CCH Australian Master Superannuation Guide.

Jacky is a Fellow of the International Academy of Family Lawyers, a board member of the Asia Pacific Chapter of that Academy, and an Associate of the American Bar Association. She acts for many clients who are overseas or where there is an international element such as overseas assets and international child abduction under the Hague Convention. She is also experienced in Australian and overseas surrogacy arrangements and in disputes about the role of a sperm donor. She is a member of the Maintenance and Property Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Jacky is keen to assist clients to resolve matters before trial through alternative dispute resolution processes including mediation. She is a trained arbitrator and is an arbitrator with The Alternative Courtroom.

Wendy Kayler-Thomson

PARTNER

University qualifications

Master of Laws, Monash University

Bachelor of Laws, University of Melbourne

Bachelor of Commerce, University of Melbourne

Other qualifications
Accredited Family Law Specialist, Law Institute of Victoria

Email Wendy Kayler-Thomson
wkaylerthomson@fortefamilylawyers.com.au

Connect on LinkedIn

Wendy Kayler-Thomson is a partner of Forte Family Lawyers and has practised as a lawyer specialising in family law for more than 25 years. Wendy is recognised as one of Melbourne’s leading family lawyers in Doyle’s 2020 Guide to the Australian Legal Market.

Wendy is the Immediate Past Chair of the Family Law Section of the Law Council of Australia, the peak body for Australian family lawyers, and has been a member of the Executive of the Family Law Section for more than 10 years. The Family Law Section is regularly consulted by the Federal government and the Courts about changes to family law and court procedures. As a result, Wendy is able to offer her clients the most up to date advice on family law and strategies to take advantage of future changes.

Wendy’s time as Chair of the Family Law Section (from 2016 to 2018) coincided with a period of great controversy and unprecedented attention on the reform of family law and the family law system. This included the Victorian Royal Commission into family violence, the Federal Parliamentary enquiry into the family law system and family violence, the Australian Law Reform Commission’s Family Law Review and the Federal Government’s proposal to restructure the Family Court and Federal Circuit Court.

Wendy was a member of the Advisory Committee to the Australian Law Reform Commission’s Family Law Review, the most comprehensive review of family law and the family law sector in 40 years.

Wendy was also a member of the Advisory Committee to the Law Council of Australia’s 2018 Justice Project, chaired by former High Court of Australia Chief Justice, the Hon. Robert French. The Justice Project is one of the most comprehensive, national reviews into the state of access to justice in Australia in the past 40 years.

Wendy develops close and trusted relationships with her clients and the wide network of professionals that refer her work. Wendy’s approach is tailored to each individual client’s needs, recognising that for most people, the breakdown of a relationship is one of their most stressful and challenging experiences. Wendy brings a high attention to detail, strategic advice and a depth of expert knowledge about family law. Wendy has a commercial background and has acted for many clients with complex financial arrangements. She works closely with her clients’ accountants and other professional advisors to ensure that all the complexities of those arrangements, including tax impacts and restructuring, are dealt with as part of any settlement.

Wendy has undertaken extensive training in a wide range of social sciences that impact on families and their children, including family and domestic violence, parental alienation, personality disorders, drug and alcohol addiction and high conflict. Wendy’s clients benefit from her knowledge of the most up to date approaches by child psychologists and other experts to managing the post-separation care arrangements of children. Wendy has particular expertise in cases where one parent wants to relocate with the children interstate or overseas.

Wendy is also a member of the Executive Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, the Association of Family and Conciliation Courts, the Australian Institute of Family Law Arbitrators and Mediators and Victorian Women Lawyers.

Jemma Mackenzie

Senior Associate

University qualifications

Bachelor of Laws (Hons) Monash University
Bachelor of Arts (Hons) Monash University

Email Jemma Mackenzie
jmackenzie@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Jemma is a Senior Associate at Forte Family Lawyers. She has worked predominantly in family law since being admitted to legal practice in December 2009.

Jemma obtained Specialist Accreditation as a Family Lawyer from the Law Institute of Victoria in 2015. Accreditation recognises the high level of knowledge and practical skills Jemma brings to each family law matter.

Jemma is mindful that the breakdown of a marriage or de facto relationship can be a stressful and often overwhelming experience for clients. She works with her clients to identify appropriate pathways for resolving both parenting and property matters.

Jemma prides herself on her ability to effectively communicate what can be complex legal principles and to provide realistic, up to date and accurate legal advice at each stage of a matter.

Jemma has experience in a wide variety of family law matters including division of property, maintenance (including urgent applications), Financial Agreements (including Agreements made prior to marriage), care and living arrangements for children, child support and family violence – including Intervention Order proceedings.

Prior to joining Forte Family Lawyers, Jemma worked in a Bayside family law firm and a boutique firm in Melbourne’s eastern suburbs. She has conducted litigation in both the Family Court of Australia and Federal Circuit Court in Melbourne and interstate.

In addition to her daily work with clients, Jemma has made presentations to financial advisors and medico-legal professionals about the family law system in Australia and what clients should know about family law prior to separating.

Jemma is a member of Victorian Women Lawyers, the Family Law Section of the Law Council of Australia and the Family Law Section of the Law Institute of Victoria.

Kristy Haranas

Senior Associate

University qualifications

Bachelor of Laws, James Cook University

Email Kristy Haranas
kharanas@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Kristy is a Senior Associate at Forte Family Lawyers. Kristy is an Accredited Family Law Specialist as recognised by the Law Institute of Victoria. Accredited Specialists are required to maintain a high degree of continuing professional development to ensure their advice is based on the most current legal principles and to the highest possible standard. Kristy was recognised in the 2020 edition of Doyles Guide as a Family Law Rising Star.

Kristy has undertaken further tertiary study in the area of family law and has a Masters of Applied Law (Family Law) from the College of Law.

Prior to joining the firm, Kristy worked in a range of practice areas including several years in family law in Queensland. Kristy also worked a lawyer for the Australian Securities and Investments Commission on large-scale financial investigations. During her time at AISC Kristy gained valuable commercial experience and developed a high level of attention to detail which she now applies to her work in family law financial cases.

Kristy has a wide range of experience in different areas of family law including parenting issues, property settlements (including complex matters with multifaceted trust/corporate structures), financial agreements, child support and family violence cases.

Kristy prides herself on building strong relationships with clients from the outset. Kristy recognises that for most people, the breakdown of a relationship can result in stress, conflict and confusion. As a result, Kristy ensures that clients receive not only strategic and commercially focused legal advice, but empathy and compassion. Kristy has strong communication skills which she uses to confidently guide clients through what can sometimes feel like a complicated legal system.

Kristy is a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria which provides her with valuable insight into recent developments in the Family Law Courts. Kristy is also a member of the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Matthew Beckmans

Senior Associate

University qualifications

Bachelor of Laws, University of Western Sydney

Email Matthew Beckmans
mbeckmans@fortefamilylawyers.com.au

Connect on LinkedIn

Matthew commenced his legal career practising in a medium-sized rural law firm. Matthew is able to draw on his broad experiences over a number of practice areas, prior to practising exclusively in family law, to offer clients a well-rounded approach to tactically resolve complex legal issues.

Matthew has developed a special interest in complex disputes involving companies and trusts, insolvency and bankruptcy, taxation, and international/domestic relocation.  He also has a particular expertise in child support.

Matthew is aware and mindful of the financial challenges and restraints when attempting to resolve family law disputes, and sets out to achieve negotiated and cost effective outcomes which avoid court where possible. Matthew recognises the emotional issues attached to the breakdown of a relationship, and draws on his strong communication skills in demystifying the family law process, and to identify and explain possible options for resolution in a concise manner.

Matthew was a member of the steering committee of the Riverina Family Law Pathways Network, secretary of the South West Slopes Law Society, and a mock trial magistrate for the Law Society of New South Wales.

Prior to practising law, Matthew was rookie listed by the Sydney Swans, where he enjoyed a brief career.  He now plays for the Monash Blues in the VAFA.

Matthew is a member of the Family Law Sections of the Law Council of Australia and the Law Institute of Victoria.  He is on the Court Practice Committee of the Family Law Section of the Law Institute of Victoria.

Vinh Nguyen

Associate

University qualifications

Bachelor of Laws, Deakin University

Bachelor of Commerce, Deakin University

Email Vinh Nguyen
vnguyen@fortefamilylawyers.com.au

Connect on LinkedIn

Vinh first worked at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2017. He joined Forte Family Lawyers as a lawyer after his admission into legal practice in October 2017 and has, since then, worked solely in family law.

Prior to his admission as a lawyer, Vinh worked as a paralegal in a community legal centre and in a property and commercial law firm, where he gained valuable experience in property transactions.

Vinh is a member of the Family Law Section of the Law Council of Australia, the Law Institute of Victoria and the Asian Australian Lawyers’ Association. Vinh also volunteers at the Darebin Community Legal Centre.

Vinh is fluent in Vietnamese.

 

 

 

Natasha Mastroianni

Associate

University Qualifications

Bachelor of Laws (Hons), Latrobe University

Bachelor of Arts, Latrobe University

Masters of Applied Law (Family Law), College of Law

Email Natasha Mastroianni

nmastroianni@fortefamilylawyers.com.au

 

 

Connect on LinkedIn

Natasha Mastroianni has experience in a range of family law matters, including property settlements, financial agreements, parenting matters (including interstate and overseas relocation issues), child support and intervention order proceedings.

Natasha was admitted to practice in August 2014 and commenced her career in a generalist practice where she gained experience in family law, property law, wills and estates. Natasha worked in a boutique family law practice prior to commencing at Forte in February 2020.

Natasha has a Masters of Applied Law (Family Law) from the College of Law and speaks conversational Italian.

Having practical experience in other areas of law assists Natasha to understand the interrelated issues involved in her clients’ family law matters. She regularly appears on behalf of clients at Duty List Hearings and other Court events in the Federal Circuit Court, Family Court of Australia and the Magistrates’ Court of Victoria. Natasha also appears as a solicitor agent for interstate or rural practitioners when required.

Natasha prides herself on being able to understand and manage her clients’ expectations whilst providing realistic and practical advice. She acts with empathy and compassion when striving to achieve the best possible results for her clients.

Natasha is a volunteer lawyer with the Women’s Legal Service and is the Vice President of the Northern Suburbs Law Association. She is also a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Mark Di Donato

Lawyer

University Qualifications

Bachelor of Criminology and Justice, Navitas College of Public Safety

Juris Doctor, Monash University

Email Mark Di Donato

mdidonato@fortefamilylawyers.com.au

Connect on LinkedIn

Mark started work at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2019. Mark was later admitted into the legal practice in September 2019 and transitioned into a lawyer role with Forte Family Lawyers in February 2020.

Prior to his admission as a lawyer, Mark volunteered as a paralegal at Darebin Community Legal Centre and interned at a commercial law firm, where he gained valuable experience in property transactions and in intellectual property. Mark also completed a Professional Placement whilst completing his law degree where he provided legal advice on various family law matters through the Monash Law Clinic.

Mark is a member of the Family Law Section of the Law Council of Australia, and the Law Institute of Victoria. Mark volunteers at the Darebin Community Legal Centre and has provided advice on a range of issues including family law.