The evidence presented to the Committee highlighted a family law system that faces significant challenges, including in relation to costs to parties, legal assistance, addressing family violence and placing the best interests of children at its centre. The Government is committed to restoring the family law system so that it is accessible, safer, simpler to use, and delivers justice and fairness for all Australian Families.

Practitioners are already moving through the various changes which have been introduced at various times since the inquiry began.

Notably, significant changes were implemented in September 2021 as the two Court’s predominantly responsible for determining Family Law matters, the Family Court and the Federal Circuit Court, were merged in to one Court, which has streamlined processes overall. The implementation of the new Rules (the Federal Circuit and Family Court (Family Law) Rules 2021) as well as various practice directions, have assisted practitioners since this time in navigating the system with their clients as quickly and inexpensively as possible, providing an overall rubric for how matters should be conducted.

From 28 November 2022, the Lighthouse project extended to become an ongoing program in 15 major Family law registries to manage cases where significant risk was involved and from the earliest opportunity, and on 30 October 2023 the Priority Property Pool Cases list expanded nationally to all filing registries to provide a case pathway for low asset matters with the aim to best preserve the parties assets.

Now, in 2024 the Government is set to implement further significant changes to the Family Law Act 1975. As of 6 May 2024, major changes will take effect with such changes to include how the Court are required to determine parenting disputes. Key changes will include:

1. Changes to how the Court are to determine the “best interests of the Child”, including abandoning the previous “hierarchy” of considerations and identifying six key categories of considerations for the Court;
2. The removal of current pathways which require the Court to consider equal time and shared parental responsibility, including removal of the presumption of equal shared parental responsibility;
3. The adoption of previous case law principles surrounding changes to Final Parenting Orders;
4. Clarification of the consequences of non-compliance with Parenting Orders;
5. Changes to delegated powers to Registrars in relation to ‘make-up’ time orders;
6. Clarifications of definitions including in relation to Aboriginal and Torres Strait Islander families;
7. Requirements for Independent Children’s Lawyers to meet with children and provide them with opportunities to express views, subject to certain exceptions;
8. The establishment of a criminal offence as to disclosing the identify of any person connected to a Family Law proceeding.

Overall, the changes set to take affect dramatically change what parents need to know about how their matter will be decided by a Court, with the additional effect being that practitioners who advise clients from 6 May 2024 onwards will not have a substantial body of law to draw from in regards to the interpretation of the legislation. While the overarching purpose of the system remains the same, it appears practitioners in this area are officially entering new ground.

Don’t get left behind. If you need help understanding how these changes may affect you, call and book an appointment with our Family Lawyer.

Things can get complicated when these third parties commence proceedings in state or federal courts, especially when you are trying to navigate your Family Law matter in the Federal Circuit and Family Court of Australia. It can be hard to know what to do in your Family Law matter when you also have uncertainty from a case in another Court that affects your entitlements in the Family Court. The Court’s different timetables can also cause an issue as you may feel that one matter needs to be determined to help determine the other matter.

When a matter is being litigated in one Court which is directly relevant to a matter in another Court (such as proceedings in the Supreme Court seeking enforcement of a debt and payment by way of sale of the family home), then one of those Courts may need to transfer their proceedings to the other Court in order to have the various issues litigated together. This process is known as cross-vesting, and is made possible by the Jurisdiction of Courts (Cross-vesting) Act 1987.

The Family Law Act 1975 (Cth) also contains provisions in section 46 which require courts of summary jurisdiction to transfer proceedings in relation to property of a total value exceeding $20,000.00, and where the orders sought are in dispute, to the Federal Circuit and Family Court or another court listed in that section, unless both parties agree to the dispute being heard in the summary court. The summary court can still transfer the proceedings of its own motion, notwithstanding that the parties would be willing for the Court to hear and determine the proceedings.

This cross-vesting between courts and cross over of jurisdiction can be complicated, because you may need to consider which court is more appropriate to hear both matters simultaneously. Sometimes cross-vesting is not the answer, or even a possibility, such as where a Court finds that the relevant criteria under the legislation are not met and declines to transfer proceedings to be heard together. So are there ways to protect your interests while you navigate your Family Law property matter?

In the case of Pratten & McPherson [2016] Austin J made an anti-suit injunction order restraining the Second Respondent in that matter, the Respondent Husband’s Mother, from taking any further steps to prosecute her claim for relief in Supreme Court proceedings initiated by her in relation to a parcel of land owned jointly by her and the Applicant Wife. The Second Respondent sought that the whole of the proceedings before the then Family Court of Australia be transferred to the Supreme Court pursuant to section 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987. The Judge discussed the need for the focus of attention to be on which of the courts would be the “more appropriate” forum, or alternatively, for it to “otherwise be in the interests of justice” that the matrimonial proceedings be transferred to the Supreme Court. The Judge found that the Family Court was the more appropriate Court to deal with the dispute, and felt the “justifiable and safest course” was to grant the anti-suit injunction (in essence, a restraint on the mother from further litigating her claim in the Supreme Court). The Judge confirmed the Court’s power to grant such a remedy arising from cases such as Cole & Abati [2016] and Teo & Guan [2015].

The case of Pratten & McPherson [2016] was cited in a further case, Janda & Janda (No 2) [2022], and similar anti-suit injunction orders were made in that case to restrain the continuation of Supreme Court proceedings by a third party to that matter. In this matter, the Court acknowledged at [22], “it is a serious step to injunct a party from continuing litigation. All the more so where that person is a stranger to the marriage. It is a step which will only be taken where the Court can be satisfied that all the matters in s90AF of the Act have been appropriately addressed.”

CBD Law can advise you of your rights in relation to your Family Law property settlement, and how these may be impacted by the rights of third party creditors. We can help you at every step of the process, including initial discussions and disclosure, representation in Court proceedings, and formalising property settlements, including property settlements that require notice or participation of third parties.

This new Court means a new system of case management, one set of documents for use in Family Law matters and one set of Court Rules. There will no longer be “Federal Circuit Court Judges” and “Family Court Judges”, although matters will continue to be divided in to one of two divisions, based on the complexity of the matter.

Any current cases will remain before the docket Judge in which it was originally assigned, and any changes which may affect your matter should explained to you. Possibly the most noticeable change you will find is the change to case management, which will hopefully result in less interim appearances and a stricter oversight of compliance with orders and disclosure. That’s the desired outcome at any rate.

The new Court website has been launched, so if you do wish to do your own research, please click the following link: https://www.fcfcoa.gov.au/about

Parents may choose to relocate for a number of reasons: they may be fleeing from domestic violence, moving to pursue better work opportunities, or moving to be closer to family, friends and other support networks. While parents do not need to show compelling reasons to relocate, applications for relocation create significant challenges for the Court, in that, where the relocation is opposed, the Court must then determine where the child shall live: with the relocating parent, or with the remaining parent? As with any other parenting dispute which comes before it, the Court must make decisions for the child based on what is in their best interests.

The recent decision of Babock & Waddell [2018] FamCA 276, is a recent case where the Court has had to consider an application for the interstate relocation of the subject child. In this matter, the Mother, Ms Waddell, sought orders that she be permitted to relocate the subject child’s residence to Perth. Arguing that the relocation would impact upon his meaningful relationship with the child, the Father, Mr Babock, opposed the relocation, and sought that the Mother and child remain living in Sydney. The Trial Judge confirmed the current position of the law, noting that, “parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act) with a view to determining what orders, if any, are in the best interests of the children.”

Upon comprehensively considering each of the matters set out in s60CC of the Act, and both parties competing proposals, the Trial Judge made orders allowing the relocation of the child. In coming to his decision, the Trial Judge considered the application of the Act in relation to parental responsibility and the subsequent need to consider making orders for equal or substantial and significant time, the benefit of relocation on the mother’s mental health and how this would impact the child, the nature of the child’s relationship with each parent and others, the nature of the parents relationships with each other, the practical difficulties of the child spending time with each parent, the child’s wishes, each parents capacity to meet the needs of the child, and issues of domestic violence. While the Trial Judge recognised that the child may initially suffer a period of distress at being separated from the Father, the paternal extended family, and her Sydney based friends, he considered the relocation to be in the child’s best interests when looking at the medium to long-term benefits it would have for the child. The orders for the relocation of the child were upheld upon appeal by the Full Court of the Family Court in Sydney: Babock & Waddell [2019] FamCAFC 129. This case provides just one example of a matter where relocation was seen to be the more preferable option for the child.

Determining whether a parent should be able to relocate a child’s primary residence, either interstate or internationally, is often a complex matter which requires consideration of a number of factors. The above case example makes this clear. If you are going through a separation, and are struggling to determine living arrangements for your child, come and see our Family Law team for advice on your options and obligations.