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Jacky Campbell, November 2016

Introduction to Wolters Kluwer Australian Family Law Act 1975 book

Every year there are obvious amendments to family law legislation, but also many other pieces of legislation which do not, by reference to their name, alert family lawyers to their relevance. These amendments are, of course, incorporated into the online version of the Autsralian Family Law Act 1975 with Regulations and Rules as they occur. This hard-copy of the 34th edition includes amendments relating to s 121 Family Law Act 1975, the Court Security Act, orders for delivering up of travel documents, the merging of the services of the Family Court and Federal Circuit Court with the Federal Court, arbitration, subpoenas, surrogacy and the costs scale in the Family Law Rules 2004.

The major changes to the Family Law Act 1975 with respect to financial agreements and other matters proposed by the Family Law Amendment (Financial Agreements & Other Measures) Bill 2015 were stalled at the Senate Committee stage and, due to the calling of a Federal Election, the future of the Bill is uncertain. These proposed amendments are not, therefore, included in this edition.

Another change in this edition is that, by popular demand, the full Federal Circuit Court Rules 2001 are included, not just the part dealing specifically with family law matters.

As this book becomes bigger with the expansion of the Family Law Act and associated Rules and Regulations, the comprehensive index at the end of the book is useful, but the Cross-Referencing Table is a very practical guide. This Table lists the sections of the Family Law Act cross-referenced to the relevant Regulations, Rules, cases and the commentary in Australian Family Law & Practice. In this edition the Cross-Referencing Table has been moved so it is easier to find. It is now located at the start of the book.

Surrogacy

As the number of applications for parenting orders to the Family Law Courts in relation to children born under surrogacy arrangements is increasing, the Family Law Rules were amended, commencing 1 January 2016 to ensure that the court has sufficient evidence to determine these applications. These Rules apply to applications not covered by the various State and Territory schemes, so primarily overseas surrogacy arrangements which will usually be commercial arrangements.

The evidence required is set out in r 4.34 – 4.36:

  1. A copy of any surrogacy agreement
  2. Evidence of the personal circumstances of the applicant including in relation to the surrogacy arrangement.
  3. Evidence of the personal circumstances of the surrogate mother including in relation to the surrogacy arrangement.
  4. Evidence of the identity of the child.
  5. Evidence about the relevant law in the child’s birth country.

At the first hearing date of the application the court must:

  1. Make procedural orders.
  2. Consider an order for the appointment of an independent children’s lawyer.
  3. Consider ordering a family consultant to prepare a family report.
  4. Consider whether a condition in s 65G(2) has been met. Section 65G deals with the making of a parenting order about whom a child lives with or the allocation of parental responsibility by consent in favour of a non-parent. Section 65G(2) provides:

“The court must not make the proposed order unless:

(a)   the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or

(b)   the court is satisfied that there are circumstances that make it appropriate to make the proposed order even though the conditions in paragraph (a) are not satisfied.”

An application for a parenting order cannot be made by filing an application for consent orders. It must be commenced by an Initiating Application (Family Law) (r 10.15(3)).

Arbitration

Although the Family Law Act provides for parties to use arbitration by consent, this dispute resolution process has been rarely utilised in family law matters. The Family Law Regulations 1984 deal with the conduct of arbitration and the registration of awards. The Family Law Rules 2004 have now been amended to address certain gaps, particularly regarding disclosure and subpoenas. According to the Explanatory Memorandum to the Family Law Amendment (Arbitration and Other Measures) Rules 2015, the gaps “were seen as impediments to efficacious arbitration”.

Each party has a duty to the arbitrator and to each other party to give timely, full and frank disclosure of all information relevant to the arbitration including information about the parties’ financial circumstances (r 26B.01).

The rules relating to subpoenas in arbitrations are generally consistent with subpoenas for court proceedings.

The main amendments are:

  1. To state that each party has a duty to the arbitrator and each other party to given timely full and frank disclosure of relevant information including financial information.
  2. To specify the process for the production, inspection and copying of documents.
  3. To specify the use of the documents produced.
  4. To specify the process for objection to production due to claim of privilege or inability to produce the document.
  5. To specify the process for applications by a party or an arbitrator for orders relating to disclosure.
  6. To provide for disclosure of documents by electronic communication.
  7. To permit an application for a court order if the cost of complying with the duty of disclosure would be oppressive.
  8. To specify the process for issuing a subpoena to give evidence in an arbitration
  9. To specify the process for production, inspection and copying of documents in relation to subpoena for production.
  10. To provide for the consequence of non-compliance with a subpoena.
  11. To state the procedure for an arbitrator to refer a question of law under s 13G of the Act to the court for determination.
  12. To state the requirements for referral of other matters to the court that ordered the arbitration.
  13. To require an arbitrator to notify the court that ordered the arbitration of certain matters when an arbitration has ended and an award has been made.
  14. To specify the requirements for service of a Form 8 application to register an arbitration award pursuant to Reg 67Q(2) of the Regulations.
  15. To provide that an arbitrator may search and copy the court record relating to the case.

Orders for delivery up of travel documents

Amendments have been made to the Australian Passports Act 2005. The term “passport” has been replaced in many sections of that Act with the term “travel documents”. An “Australian travel document” is defined in s 6 of that Act as “an Australian passport or a travel-related document”.

Section 67ZD Family Law Act 1975 has been amended to give a Family Law Court the power, if it considers there is a possibility or threat that a child may be removed from Australia, to order an Australian travel document or a passport or other travel document issued by the government of a foreign country to be delivered up to the court.

The Passport Act was also amended to ensure that the reference to “parental responsibility” in that Act is consistent with the concept and its use in the Family Law Act to remove any confusion as to who is required to consent to a child leaving on an Australian travel document.

Section 121 – Publication of court proceedings

An amendment has been made to s 121 Family Law Act, which is the section restricting publication of Court proceedings. A further exception has been added to s 121(9):

“(aa)  the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph.”

This additional exception applies to communications made on or after the commencement of s 121(9)(aa). The exception confirms that as such disclosure is not disseminated to the public or to a section of the public it is not a breach of s 121.

Regulation 19A Family Law Regulations 1984 is new and prescribes authorities for the purpose of s 121(9)(aa). They are:

(a)        for New South Wales – the Department of Family and Community Services;

(b)        for Victoria – the Department of Health and Human Services;

(c)        for Queensland – the Department of Communities, Child Safety and Disability Services;

(d)        for Western Australia – the Department for Child Protection and Family Support;

(e)        for South Australia – the Department for Education and Child Development;

(f)        for Tasmania – the Department of Health and Human Services;

(g)        for the Australian Capital Territory – the Department of Community Services;

(h)        for the Northern Territory – the Department of Children and Families.

Court Security Act 2013

The Court Security Act 2013 allows courts to appoint security officers or other court officers to exercise a range of security powers. Security orders can be made in circumstances where there is an ongoing risk of significant disruption to those courts or a risk of violence affecting persons or property connected with a court covered by that Act. These orders are restraining or protection type orders which restrict the behaviour of a specified person in or around court premises, or in relation to a member or officer of the court. The Family Court of Australia, the Family Court of Western Australia and the Federal Circuit Court of Australia are all covered by this Act.

Amendments to the Family Law Act give appeal rights with respect to orders made by the Family Court of Western Australia and clarify the process of varying and revoking court security orders.

Merging of courts’ corporate services

As of 1 July 2016, the corporate services functions of the Federal Court, Family Court and Federal Circuit Court are shared, with the CEO of the Federal Court being responsible for managing the corporate services of each of the 3 courts with a requirement to consult each of the heads of jurisdiction and the other CEOs. The Federal Circuit Court is to be given its own CEO rather than share one with the Family Court. From 1 January 2018 the Family Court CEO and the Family Court Principal Registrar will be merged. The Explanatory Memorandum to the Courts Administration Legislation Amendment Act 2016 states that the merging of the court’s corporate functions is expected to deliver efficiencies to the courts of $9.4m over the six financial years to 2020-2021 and ongoing annual efficiencies of $5.4m from that time.

Subpoenas

The amendments to the Family Law Rules bring the process for production and inspection of documents in line with that under the Federal Circuit Rules 2001, thereby streamlining the process and reducing the number of court appearances. When a subpoena is issued an administrative production day is set rather than listing a hearing date. Inspection can occur provided there has been service, compliance by the named person, the absence of any objection and the issuing party files a notice of request to inspect. Automatic copying of child welfare, criminal, medical and police records is prohibited. Medical records may be inspected by the person whose records they are, prior to inspection by the parties, their lawyers and independent children’s lawyer, in order to determine whether to object to inspection or copying.

Any objections are listed for hearing by the court.

Costs

The costs in Schedule 3 of the Family Law Rules were increased by 3% from 1 January 2016.

Conclusion

The recent amendments to the Family Law Rules are designed to streamline processes, particularly in the areas of arbitration, parenting applications with respect to surrogacy applications, and subpoenas. Recent amendments to the Family Law Act, such as with respect to s 121, and the delivery up of travel documents, clarify and tidy up the existing law, rather than make substantive changes.

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.