On 10 December 2024, the Family Law Amendment Act 2025 received Royal Assent and became law, changing significant aspects of the Family Law Act 1975, which is the governing legislation for family law matters. The changes are far-reaching. This is part 3 and the final part in a series of articles explaining those changes. Part 1, which relates to the major changes to the property settlement framework can be found here, and Part 2 which relates to the changes to how evidence is received in matters including subpoena information and arbitration, is found here.
Children’s Contact Services
Children’s contact services are frequently used in family law matters where there are allegations of risk made against a party. Supervised time allows that child to still maintain a relationship with the person who is alleged to pose a risk to that child, whilst also maintaining that child’s safety.
However, up until this point, there has been no accreditation or rules governing the provision of children’s contact services. One of the amendments is to establish accreditation rules that a centre must abide by to become an accredited children’s contact service. If a person attempts to provide contact service without accreditation, the Act now prescribes that this is a crime subject to a penalty of 50 penalty units ($5,500). If a Body Corporate commits such an offence, the penalty is 250 penalty units ($27,500).
Children’s contact services are now defined in Section 10KB of the Family Law Act as:
- A service that:
(a) facilitate contact between a child and member of the child’s family with whom the child is not living;
(b) are provided in circumstances where members of the family may not be able to safely manage such contact; and
(c) are provided on a professional basis, on a commercial basis, as a charity, or in the course of an undertaking that has a charitable purpose.
- This may include:
(a) supervising the movement of a child between two or more members of the child’s family;
(b) supervising time spent by the child with a member of the child’s family (including contact over the phone or internet); and
(c) providing a space for the child to spend time with member of the child’s family.
- Supervision of contact (including contact over the phone or internet) between a child and a member of the child’s family who is in a correctional institution (however described) are not children’s contact services.
- The amendments also provide that a contact service practitioner or children’s contact service business may not be compelled to disclose safety for information which is defined in Section 10KE as information that relates to the risks of harm to a child or a member of the child’s family, or the identification management of such risk, if:
(a) children’s contact services have been, are being, or will be, provided to the child; and
(b) the risks are those that may arise in connection with the use, facilitation or provision of the service.
- There is of course exceptions to that rule. The information can be disclosed to protect a child from a risk of harm, to prevent or lessen a serious imminent threat to life or commission of an offence, including destruction of property, or to disclose this information to an independent children’s lawyer, if it is unreasonable, impractical to obtain consent from the other parties.
Changes to Divorce Applications
Currently, Section 44(1B) of the Family Law Act restricts a party’s ability to bring an application for divorce without special permission from the Court if the parties have been married for less than two years. To avoid this issue, parties either had to wait until two years had passed since the date of marriage, attend upon a Family Counsellor to obtain a certificate evidencing that the parties are considered reconciliation and failed, or convince the Court that there are special circumstances in any event to give leave and to hear the matter, nonetheless.
The amendment removes such requirements, and parties will be able to apply for divorce at any time after they marry, provided they can demonstrate that they have been separated for 12 months, which remains the sole reason ground to apply for divorce.
The amendments also changed the requirements for parties’ attendance at divorce hearings. Previously, if there were children under 18 and the application was not a joint application, the applicant would be required to attend Court to explain the children’s current circumstances to the Court. This will no longer be required. Such information can already be outlined in the application itself.
Family Dispute Resolution for Parenting Matters
There is already a requirement to attend family dispute resolution and obtain what is called a Section 60I Certificate before being able to commence proceedings regarding parenting matters. You can read more about this in my article “FDR” – the first step in inner parenting/children dispute (insert Hyperlink when uploaded to website).
However, a recent case caused the Court to discover a drafting error in the legislation, which does not specifically give the Court power to refuse to accept an application if a Section 60I Certificate was not attached to the application. This amendment rectifies that, so it is now very clear that parties are expected to attempt to attend mediation for parenting matters (unless an exception applies) before filing an application with the Court.
Jurisdiction of State Courts to make Parenting Orders
Further clarification has been given regarding the state Court’s ability to hear parenting orders to ensure there are no misunderstandings about any appeal rights from any judgments from state courts to the full Family Court of Appeal.
Costs Orders
The old Section 117 of the Family Law Act, which was the governing provision for cost orders has been repealed and now replaced with Section 114UB. The factors which the Court must consider when deciding to make a cost order if any are:
A. Financial circumstances of each party of the proceedings.
B. Whether any party of the proceedings is receiving assistance by way of legal aid in respect of the proceedings and if so, the terms of the grant of the assistance to that party.
C. The conduct of the party to the proceedings in relation to the proceedings including without limiting paragraphs A and B, the conduct of the parties in relation to the pleadings, particulars, discovery, inspection directions, answering questions, admission effects, production of documents and similar matters.
D. Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.
E. Whether any party to proceedings has been wholly unsuccessful in the proceedings.
F. Whether a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings in the terms of any such offer.
G. Such other matters as the Court considers relevant.
The amendments also make clear that recipients of assistance from the government under the Family Violence and cross-examination of parties’ schemes may be ordered to pay the costs of the Independent Children’s Lawyer or unless an existing financial hardship provision applies.
Furthermore, the amendment also makes clear that a cost order can be made against a party who previously received legal aid but is no longer eligible due to a change in financial circumstances.
The amendment otherwise brings provisions that were previously in the rules within the act for ease of reference for parties.
Review of Approved Methods and Factors for Valuing Superannuation Interests
The court is now empowered to make regulations requiring superannuation trustees to review the actuary formulas they use to value superannuation interests for family law matters.
Separation Declaration Requirements
Parliament has helpfully repealed Section 90XQ of the Family Law Act, which previously provided that parties needed to be separated for more than 12 months (if their superannuation was worth a certain amount of money) before parties could execute a Financial Agreement to split or otherwise deal with their superannuation interests.
This repeal removes that requirement, which will make it significantly easier for parties to a financial agreement to deal with their superannuation interests pre and post-separation.
Significant changes are coming into force, so it is crucial to obtain accurate, up-to-date advice when those amendments take force, and to also obtain advices and how those amendments may affect any ongoing family law matter that will not be resolved by 11 June 2025.
If any of that applies to you, please contact Baker Love Lawyers on (02) 4944 3322 to make an appointment with our accredited specialist and family law, Hayden Carr.
