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Jacky Campbell, November 2018

Family Violence – changes to the Family Law Act

The Family Law Amendment (Family Violence & Other Measures) Act 2018 (“Family Violence Act”) commenced operation on 1 September 2018. Its changes will impact on the law, practice and procedures in family law matters, not only where there are family violence orders.

Although the Bill received considerable attention when it was introduced to Parliament on 6 December 2017, less attention was paid to it when it finally passed both Houses on 22 August 2018. It received Royal Assent on 31 August 2018. The focus of attention of Australia at that time was on the federal parliamentary Liberal Party leadership spill. Family lawyers were (and still are) concerned about the Bill introduced to Parliament on 23 August 2018 for the proposed merger of the Family Court and the Federal Circuit Court, and their incorporation into the Federal Court, with the Full Court of the Federal Court to hear family law appeals. This article outlines the important changes made by the Family Violence Act, rather than speculate about future legislative changes.

Overview of changes

The Family Violence Act deserves to be given close consideration by family lawyers, as it has brought about major changes to the Family Law Act 1975 (FLA). In summary, these are:

  1. Courts can be given by regulation the same family law parenting jurisdiction as exercised by the State and Territory courts of summary jurisdiction. This change is particularly directed at courts exercising welfare jurisdiction in relation to children – such as children’s courts – which are not always courts of summary jurisdiction.
  2. The monetary limit on the jurisdiction of courts of summary jurisdiction to hear contested family law property matters without the parties’ consent can be increased by regulation.
  3. Courts may give short-form reasons for decisions relating to interim parenting orders.
  4. Family law courts have explicit and broader power to dismiss unmeritorious applications.
  5. Judges have the discretion to dispense with the requirement to explain an order or injunction to a child where the order or injunction provides for a child to spend time with a person and the child is protected by family violence order, if it is in the best interests of the child not to have the explanation.
  6. The 21-day time limit on the revival, variation or suspension of family law orders by State and Territory courts in family violence order proceedings has been removed.
  7. A redundant provision that allows a Family Law Court to make an order relieving a party to a marriage from an obligation to perform marital services or render conjugal rights was repealed (s 114(2)).

It was proposed that a breach of a family law injunction for personal protection become a criminal offence, but the introduction of this change was deferred by Parliament.

Jurisdiction of State and Territory courts to hear property matters

Prior to the commencement of the Family Violence Act, courts of summary jurisdiction could hear property settlement matters without the consent of both parties, if the total value of the property did not exceed $20,000. This monetary limit still applies (s 46A(1)), but the regulations of each court of summary jurisdiction can prescribe a higher amount.

The Family Law Council supported an increase in the monetary limit “as a way of supporting clients of these courts to achieve some measure of economic independence without having to initiate proceedings in the family courts”. (Family Law Council: Final Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems, p.145). The upper property limit in the FLA of $20,000 has not been updated since 1988. The Family Law Council said that this sum was equivalent to approximately $43,800 in 2016.

The Family Violence Act allows for relevant State and Territory courts, such as children’s courts, to exercise the same family law jurisdiction as courts of summary jurisdiction when dealing with parenting matters under Pt VII FLA. According to the Revised Explanatory Memorandum this allows parties to resolve related matters together in State and Territory courts, reducing the need to commence proceedings in a second court and can reduce time, cost, pressure and risk for vulnerable families and children. State and Territory courts are not intended to become the primary fora for resolving family law disputes, but have been given additional tools to resolve matters involving family violence holistically.

The Family Law Section of the Law Council of Australia (FLS) supported an increase in the jurisdiction of State and Territory courts in family law property matters to promote opportunities for resolution of multiple aspects of a case in the one court. It proposed that a limit of $100,000 be set by the FLA, rather than regulations, to enable proper consideration of any proposals to increase the amount (Submission to the Attorney-General’s Department on the Exposure Draft, pp 5-6).

Summary Decrees

A new provision, s 45A FLA, has replaced the previous s 118 FLA in relation to the summary dismissal of unmeritorious applications. According to the Revised Explanatory Memorandum, the aims of the new provision are:

  • “To clarify and modernise the powers of the court”; and
  • To allow a court “to prevent the use of its court room as a tool for perpetrators of family violence to perpetuate violence”.

Section 118, which has been repealed and incorporated into s 45A(4), provided:

“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.”

Section 118 was supported, in relation to the Family Court, by Pt 10.3 Family Law Rules 2004.

The new s 45A(1) and (2) allow the court to make a summary decree in favour of one party, in relation to the whole or part of a proceeding, if satisfied that a party has no reasonable prospect of successfully:

  • prosecuting the proceedings or part of the proceedings, or
  • defending the proceedings or part of the proceedings.

In determining whether a defence or proceeding has no reasonable prospect of success, proceedings need not be hopeless or bound to fail (s 45A(3)).

A court can, as under the previous s 118, “dismiss all or part of proceedings at any stage if it is frivolous, vexatious or an abuse of process” (s 45A(4)).

Reasons in short form

The new s 69ZL FLA provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. This amendment implements recommendation 3 of the Family Law Council’s 2015 Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems. The Council identified that a practical barrier to children’s courts or courts of summary jurisdiction exercising family law jurisdiction is that writing detailed judgments is not the usual practice of these courts.

The Revised Explanatory Memorandum states:

“Courts are already able to give reasons for any decision in short form, as long as the reasons are adequate. Adequate reasons are required by the implied guarantee of procedural due process in the exercise of judicial power.”

The FLS generally supported this amendment but was of the view that it was unlikely to have any impact without broader amendments and simplification of the interim parenting decision making process mandated in Part VII FLA.

Explaining orders or injunctions to children

A court exercising FLA jurisdiction is required, to the extent to which the order or injunction provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child, to explain the order or injunction to the person protected by the family violence order (if that person is not the applicant or respondent) (s 68P(2)(c)(iii)). In some circumstances, the person protected by the family violence order may be a child.

New s 68P(2A), (2B) and (2C) FLA create exceptions to the requirement to explain certain decisions of the court to children. The Revised Explanatory Memorandum explains (para 94) the reason for the change:

“In practice, it can be difficult for the court to comply with the requirements of s 68P(2)(c)(iii) and s 68P(2)(d) where the person protected is (or includes) a child. For instance, young children covered by the order or injunction, such as infants and toddlers, are unlikely to be able to grasp the concepts to be conveyed in the explanation. For older children it may not be in their best interest, and indeed may be distressing, to be exposed to parental controversy to the extent necessary to comply with the requirements.”

Section 68P(2A) specifies that the court is not required to provide the explanation required by s 68P(2)(c)(iii) to a child if the court is satisfied that it is in the child’s best interests not to receive an explanation of the order or injunction. The new s 68P(2B) specifies that the court is not required to include a particular matter otherwise required to be explained by s 68P(2)(d) if the court is satisfied that it is in the child’s best interests for the matter not to be included in the explanation.

Section 68P(2C) provides that when determining what is in a child’s best interests for the purposes of s 68P(2A) and 68P(2B), the court is required to consider the matters in s 60CC(2), but is not required (but may choose) to consider matters listed in s 60CC(3), despite the requirement in s 60CC(1).

Section 68P is intended to strike an appropriate balance between ensuring that judges do not dispense with an explanation lightly, and avoiding an excessive burden on judges to consider an extensive range of matters.

Interaction of family violence orders and FLA parenting orders

Section 68R FLA deals with inconsistency between protection orders made under State and Territory family violence legislation and FLA orders. Section 68R(1)(a) FLA provides that in proceedings to make or vary a family violence order a State or Territory court may revive, vary, discharge or suspend, for example, a parenting order in relation to a person spending time with a child. The Bills Digest (at p 11) explained the purpose of this part of the FLA as:

  • to resolve inconsistencies between orders
  • to ensure that such orders do not expose people to family violence and
  • to achieve the objects and principles in s 60B FLA, which relate to meeting the child’s best interests (s 68N).

The operation of the relevant sections (as they were before the Family Violence Act) is explained in the Bills Digest (at p 11-12):

“Section 68R operates differently depending on whether a parenting order is amended by a state or territory court during proceedings for an interim protection order or for a final protection order. When a parenting order is revived, varied or suspended under s 68R in proceedings to make or vary an interim protection order, s 68T provides that the variation or suspension of the parenting order only has effect for the period of the interim protection order or 21 days from the date of the order, whichever is earlier. In contrast, the Family Law Act does not place a time limit on parenting orders revived, varied, discharged or suspended in proceedings to make or vary a final protection order.”

The new s 68T(1)(b) and (c) implement recommendation 4 of the Family Law Council’s 2015 Interim Report. The amendment is also consistent with recommendation 12 made by the Victorian State Coroner in the findings of the inquest into the death of Luke Geoffrey Batty (Revised Explanatory Memorandum p 20).

To avoid inconsistent orders about parent-child contact, this amendment removed the 21 day time limit. Instead, the court’s revival, variation or suspension under s 68R ceases to have effect at the earliest of:

  • The time the interim family violence order stops being in force (unchanged s 68T(1)(a));
  • The time specified in the interim order as the time at which the revival, variation or suspension ceases to have effect (new s 68T(1)(b), and
  • The time that the order is affected by an order made by a court, under s 68R or otherwise, after the revival, variation or suspension (new s 68T(1)(c).

This means that any revival, variation or suspension of an order will always cease upon the expiration of the interim protection order, but judicial officers have the flexibility to determine timeframes and relist matters to manage cases according to particular circumstances. The objective is to provide certainty for victims of family violence.

Conclusion

The Family Violence Act’s primary purpose is to allow courts making family violence orders (courts of summary jurisdiction and children’s courts) to also exercise FLA jurisdiction, so as to avoid the necessity of the parties also being required to have litigation in a Family Law Court when the FLA issue could have been dealt with by the court making the family violence order.

Whilst most of the changes in the Family Violence Act will only impact on parties where there are family violence orders, there is a wider impact. The power of the Family Law Courts to make a summary decree in favour of one of the parties in relation to part or all of the proceedings has been re-worded and re-located in the FLA. Courts of summary jurisdiction can make regulations to increase the monetary limit of contested property matters from $20,000. Whether the States and Territories will take advantage of this change and therefore we will see more contested property proceedings heard in courts of summary jurisdiction, is not yet clear.

 

 

© Copyright – Jacqueline Campbell of Forte Family Lawyers and Wolters Kluwer/CCH. This paper uses some material written for publication in Wolters Kluwer/CCH Australian Family Law and Practice. The material is used with the kind permission of Wolters Kluwer/CCH.

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

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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.

Jane Bentley

Senior Associate

University Qualifications

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

Bachelor of Laws, Victoria University

Bachelor of Science, University of Melbourne

Email Jane Bentley

jbentley@fortefamilylawyers.com.au

Other Qualifications

Accredited Family Law Specialist, Law Institute of Victoria

Jane is a Senior Associate at Forte Family Lawyers. Jane is an Accredited Family Law Specialist as a recognised by the Law Institute of Victoria. Accredited Specialists demonstrate superior knowledge, experience and proficiency in their specialist area of law.

Additionally, Jane has undertaken a Masters of Applied Law in Family Law.

Prior to joining the firm, Jane has worked in both the private and community sectors where she worked on both complex parenting and property matters, regularly appeared in the Family Law Courts and through her work at a commercial firm Jane was able to build and enhance her commercial skills. Throughout her career, Jane has worked collaboratively with commercial lawyers providing advice where both family and commercial law intersect, as well as working directly with professionals on family law matters including psychologists, mediators, accountants and financial advisors.

Jane has a wide range of experience in different family law matters including financial agreements, family violence, parenting, IVF issues, matters involving grandparents, Hague Child Abduction Convention, child support, property and spousal maintenance.

Jane prides herself on her ability to communicate effectively with her clients during an emotional and challenging time. Jane builds strong relationships with her clients as she recognises that the legal system can appear complex and daunting and works with her clients to guide them through the process.

Jane is a member of the Courts Practice and the Property and Maintenance Committees of the Law Institute of Victoria which ensures that she is appraised of recent developments in family law and at the Family Law Courts. Jane is also a member of the Family Law Section of the Law Council of Australia.

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.

Natasha Mastroianni

Senior 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.

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.

 

 

 

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.