Part 2 of our 3-part series discussing changes to the Family law amendment act, covers the following schedules:
- Schedule 2: Enforcement of child-related orders;
- Schedule 3: Definitions of ‘member of the family’ and ‘relative’;
- Schedule 4: Independent Children’s Lawyers and Hague Convention proceedings.
Schedule 2: Enforcement of child-related orders
This schedule encompasses:
- A revision of Division 13A of Part VII (enforcement of child-related orders).
- Amendments enabling registrars to be delegated the authority, to issue ‘make-up time parenting orders’
Division 13A Redraft
Division 13A of Part VII of the Family Law Act has undergone a redraft to enhance clarity regarding the consequences of non-compliance with parenting orders, making the provisions more accessible for the courts to implement.
The redraft introduces several policy changes while preserving the fundamental principles of compliance and enforcement provisions. These policy changes include:
- Removal of specific cost order provisions from Division 13A (cost orders for non-compliance will now be made under section 117 of the Family Law Act).
- Elimination of the court’s power to issue Community Service Orders in cases of non-compliance as this was not being used by the Courts.
- Clarification that the court may order additional time for a child with a person, alter a parenting order, or mandate parties to attend parenting programs at any stage of a contravention proceeding, without necessarily making a finding on a contravention.
The redraft maintains a broad spectrum of sanctions that the court can apply when orders are not adhered to. The existing law on determining a ‘reasonable excuse’ for contravention of orders, including situations involving safety concerns, has also been retained.
Delegating New Powers to Registrars
These changes also amend the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) to empower registrars of both Divisions of the FCFCOA to be delegated the authority to issue further parenting orders, allowing a child to spend additional time with a person (commonly referred to as a ‘make-up’ time or ‘compensatory time’ order).
Commencement and Application Information
Most provisions of Schedule 2 fall under Part 1, Division 1 (Enforcement of Child Related Orders) – main amendments and will come into effect on May 6, 2024.
Schedule 3: Definitions of ‘Member of the Family’ and ‘Relative’
The amendments outlined in Schedule 3 broaden the definitions of ‘relative’ and ‘member of the family’ to incorporate Aboriginal and Torres Strait Islander cultural concepts of family.
The changes include an expanded definition of ‘relative of a person’ in subsection 4(1AD). According to this amendment, if a person is an Aboriginal or Torres Strait Islander child, another person is considered a relative of that child if, in line with the child’s Aboriginal or Torres Strait Islander culture (including, but not limited to, any kinship systems of that culture), they are related to the child.
This modification to the definition of ‘relative of a person’ extends to the definition of ‘member of the family’ in subsection 4(1AB). Consequently, the definition of ‘member of the family’ now applies to:
- The definition of step parent in subsection 4(1),
- The definition of family violence in section 4AB, and
- The new standalone best interest factor for Aboriginal or Torres Strait Islander children in paragraph 60CC(3)(a).
It’s important to note that the expanded definition of ‘member of the family’ does not impact the obligations of parties to proceedings under the Family Law Act regarding the disclosure of specific matters under sections 60CF, 60CH, and 60CI. The original definition of ‘member of the family,’ excluding the expanded component, continues to govern the obligations under sections 60CF, 60CH, and 60CI, even for Aboriginal or Torres Strait Islander parties to proceedings.
These definitions are designed to be interpreted and applied in connection with a child’s Aboriginal or Torres Strait Islander culture, as defined in subsection 4(1) of the Family Law Act.
Commencement and Application Information
The changes introduced by Schedule 3 are applicable to all proceedings initiated on or after May 6, 2024, and ongoing proceedings as of that date, except in cases where the final hearing has commenced.
Schedule 4: Independent Children’s Lawyers and Hague Convention Proceedings
This schedule introduces amendments to provisions concerning Independent Children’s Lawyers (ICLs), encompassing a new requirement for ICLs to engage directly with the children whose best interests they have been engaged to represent, allowing them an opportunity to express their views. Furthermore, it expands the use of ICLs in cases governed by the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
Requirement to Meet with the Child and Provide an Opportunity to Express a View
ICLs are now mandated to meet with the relevant child/children and afford them an opportunity to express their views, unless exceptional circumstances apply. This ensures consistent engagement in every suitable case, promoting national uniformity in ICL practices. Offering children the chance to express their views is crucial, aligning with children’s rights under Article 12 of the CRC, while maintaining their safety and well-being.
Notably, an ICL cannot compel the child to express their views on any matter, in line with section 60CE of the Family Law Act. The legislation grants the ICL discretion regarding when, how often, and how meetings with the child occur, as well as when, how often, and how the child is provided with an opportunity to express views (new subsection 68LA(5AA)). This discretion is subject to any court order or direction.
Exceptions exist where an ICL is not obliged to perform duties if: the child is under 5 years of age, the child declines to meet with the ICL or express their views, or if exceptional circumstances, such as potential harm to the child, (new subsection 68LA(5B, 5C)).
There is no specific timeframe for performing these duties, allowing flexibility based on the case’s facts and circumstances. However, the ICL must fulfill these duties before the court makes final orders – the Court cannot make final orders unless they are satisfied that either these duties have been fulfilled or an exceptional circumstance applies. If exceptional circumstances prevent duty performance, the court evaluates whether such circumstances exist and may nevertheless issue an order requiring the duty’s fulfillment (new subsection 68LA(5D)).
ICLs may seek external evidence to support their decisions, such as advice from family consultants, relevant experts, or treating practitioners. The weight given to this advice is at the ICL’s professional discretion and is considered by the court.
Expansion of the Use of Independent Children’s Lawyers in Hague Convention Cases
The amendments eliminate the requirement that ICL appointments in Hague Convention cases be made only in ‘exceptional circumstances.’ Judges can now appoint ICLs in these cases without the exceptional circumstances constraint. This aligns Hague Convention proceedings with other family law matters under the Family Law Act, allowing ICL appointments under the same circumstances.
The changes repeal subsection 68L(3) and substitute subsection 68L(1) to clarify that the court’s consideration of appointing ICLs applies to proceedings where a child’s best interests are paramount or a relevant consideration, including proceedings under regulations for the Hague Convention (section 111B).
Repeal of Section 111B(1B) – Child’s Objections Exemption in Hague Convention Cases
The amendments eliminate section 111B(1B) in its entirety, removing the higher threshold requirement under the Family Law Act for considering a child’s objections to return under the Hague Convention. This realignment with Article 13 of the Hague Convention removes the criterion that the objection must exhibit strength of feeling beyond a mere preference or ordinary wishes.
Commencement and Application Information
Schedule 4 takes effect on May 6, 2024. Parts 1 (Requirement to meet with the child) and 2 (Convention on the Civil Aspects of Child Abduction) apply to all proceedings initiated on or after May 6, 2024, and ongoing proceedings as of that date, except when the final hearing has commenced.
If you need legal advice regarding changes to the family law amendment act or a new enquiry regarding a family law matter, please contact our office on (07) 3252 0011 to book an appointment with one of our friendly family lawyers today.
