Johannes Schmidt

Barrister + Mediator + Arbitrator

Category: Uncategorized

Travel Applications in Parenting Proceedings

1 July 2026 /

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Overview

In this episode, I discuss travel applications. Those are applications by a party to take a child outside of Australia for the purposes of short-term travel.  I also discuss some related passport issues. 

Default position

It’s important to be aware that the default position for a child, who is subject either to an extant parenting order or an application for a parenting order, is that you’re not permitted to remove them from Australia, except pursuant to a court order, or with authenticated written consent of every other person who is party to the extant order, or the extant application. I covered that in some detail in the previous episode, so check that out if you haven’t seen it. 

Travel applications

Travel is important for many Australian families.  We’re quite an isolated country geographically, and many, many of us are immigrants.  Many more are descended from immigrants, and still have ties to family, culture, and language overseas, and want to keep those ties alive for their children.

Because many families have two parents who are descended for migrants, or who are migrants, it’s often a matter of consent to have travel provisions in orders, because both parties are motivated to be permitted to travel, as long as certain conditions are met. In the previous episode, I discussed some considerations for when you are drafting travel orders. 

Sometimes, there are circumstances where one party wants to travel with a child and the other doesn’t consent.  That’s where travel applications come in.

Timing considerations

It’s often very important to turn your mind to timing issues in relation to travel applications, particularly when it’s a discrete application for a particular trip.  You need to factor in the usual lead times, particularly when you’re filing an Application in a Proceeding.  You have to then wait, usually for a mention before a Judicial Registrar who doesn’t actually have the power to determine the travel application.  Then, from that hearing, you then get a listing to a defended interim hearing before an officer who does.  That can cause a significant delay, so factor that in when talking to your client about when they want to travel, and what are realistic timeframes to get a matter on to permit the travel. 

Of course, there are sometimes urgent circumstances that motivate a party to want to travel with children. Say, for example, a child’s grandparent overseas is terminally ill, and is expected to pass away soon.  The parent may really want to take the children to see their grandparent before they pass away.  In those cases, you really need to think about the urgency of the application, and the usual processes to seek for an urgent hearing and an abridgement of time for service apply. 

The Kuebler factors

A travel application is, ultimately, of course, a parenting application, so the court has to consider the child, or the children’s, best interests under Section 60CC of the Family Law Act 1975.  But there are some travel-specific considerations, which emanate from the appellate authorities in relation to travel orders.  The leading authority is Kuebler and Kuebler [1978] FamCA 26.  The Kuebler factors are

  • the duration of the proposed travel;
  • the bona fides of the application;
  • the likely effect on the child of being deprived of time with the other parent;
  • any threats to the child’s welfare; and
  • the degree of satisfaction that the court has that the parent will return the child, as promised. 

Duration of travel

As general propositions, in my experience:

  • a shorter trip is more likely to be permitted than a longer one; and
  • a trip which fits neatly into school holidays is more likely to be permitted than one which sees the child missing school.

In my experience, the ratio of travel time to time the destination can also be relevant. In one matter that I was involved in, the parties lived in a regional town.  The travel time to the nearest international airport was something like 4 – 6 hours, and that, coupled with needing to arrive at the airport 3 hours before departure, the actual flight time to the transit country in Asia, the time in transit, and then the flight time on to Europe, and then more drive time at the other end to get to the town where the extended family lived, meant that the travel time door-to-door was something like 48 hours each way. 

In that case, the father didn’t oppose the mother taking the children overseas.  The fight was over the duration of the trip.  The mother was meant to have the second half of the term holidays, which was the usual 7 – 10 days, depending on how long the school holidays are.  The father said “it’s fine for the mother to travel, as long as she leaves and comes back during her scheduled time with the children.” 

The court took into account that, if that were to have occurred, the children would have spent 48 hours there and 48 hours back, so about 4 days’ travel time, to only have 3 or 4 days in Europe to spend with the extended family. 

The court considered that that would not have been in the children’s best interests, and therefore permitted the longer travel time. 

Bona fides

The court wants to be satisfied that there’s a legitimate purpose for the trip – that it’s not being done for the ulterior purpose of just keeping the children away from the other parent.  

It’s not a reasonableness test, and there’s subsequent authority on that. There’s no requirement that the trip be worthwhile in a utilitarian or economic sense. 

There just needs to be a legitimate purpose, and the court needs to be persuaded that that is why your client wants to travel with the children. 

Effects on the child of deprivation of time with the other parent

This factor will really turn on the specific circumstances of that family. 

For example, if there’s an extant order for the children to have half of the long summer holidays with each parent in a block, and the applicant wants to travel within their 3-week block of the summer holidays, there’s obviously not going to be a deprivation of time with the other parent, because the children wouldn’t have spent time with that other parent then anyway.

But if the travel time overlaps with the other parent’s time, then this might be a more relevant factor.  In my view, it’s a good idea, if it’s that sort of an application, to also, with the travel application, seek orders for make-up time with the other parent.  Be proactive about it, offer that make-up time, and seek an order for it.  That might make the court more likely to permit the travel, knowing that there’ll be make-up time there. 

Threats to the welfare of the child

There might be some specific threats relevant to the case.  For example, if there’s some allegation that some extended family member has abused or molested a child, that might be a specific factor that the other side raises, and that the court considers. 

I haven’t come across a case like that. 

The ones I’ve come across, where there’s been a threat, have been where there’s a DFAT advisory that says do not travel or reconsider your need to travel, because it’s a war zone, or because of terrorist activity, or that sort of thing.  In those cases, it’s really important for your client to put on evidence as to how they’re proposing to manage, and mitigate, that risk.  I have had orders made permitting a client to travel with a child to a reconsider travel destination, because the client had really made plans, with their extended family, of travelling away from the particular terror hotspots, and ensuring that they had escape plans. They had places they could drive to, to get further away, and that sort of thing. 

Degree of satisfaction that the travelling parent will return the child – the Line factors

The court will often require some form of security from the travelling parent.  Typically, that’s in the form of a bond, often paid into the other party’s lawyers’ trust account.  It can also be some sort of encumbrance on title to a real property owned by the travelling parent, and that’s often done by way of lodging a caveat.

The Full Court in Line & Line [1996] FamCA 145 clarified that the purpose of that security is twofold:

  1. to provide sufficient incentive for the travelling parent to return; and
  2. to effectively give the left-behind parent effectively a fighting fund to litigate for the return of the child, if the travelling parent doesn’t return as ordered.

In Line, the Full Court set out a number of considerations to take into account in relation to this Kuebler factor:

  • the ties which the travelling parent has to Australia, which include things like an interest in real property, interest in a business, and familial and personal ties;
  • any motive the travelling parent may have not to return the child to Australia, including conflict between the parties, particularly if that’s conflict in relation to the child or the children;
  • the ties which the travelling parent has to the destination country, including, again, things like an interest in real property, interest in a business, and familial, and personal ties;
  • whether the destination country is a signatory to the Hague Convention on International Child Abduction that’s recognised by Australia – of course, in relation to that, you can just look at the Attorney-General’s website on the Hague Convention, which has an up-to-date list of signatories recognised by Australia; and
  • the financial circumstances of the parties – for example, if the travelling parent is worth $50 million, a $10,000 bond is unlikely to incentivise them to return.

Don’t forget to adduce evidence

If your client is not seeking a specific travel order for a specific trip, but is just seeking a general travel order in a final orders application, don’t forget to address the travel proposal in the trial affidavit.

Remember, counsel is not permitted to make submissions without a basis in evidence.  In any event, if there’s no evidence, the judge will just say, “I’ve got no evidence. I can’t determine this issue.”  

Even if there’s no specific travel proposal, the client will, presumably, have some reason for seeking the travel order, whether it’s that they have family overseas, or they just want to be able to go on holidays.  Whatever the reason, make sure it’s there.

Can the court make a general order without a specific proposal?

There are some authorities that question whether the court can make a general travel order on a final basis in the absence of a specific proposal.  For example, Judge Glass, in Jefferson and Hooper (No 2) [2025] FedCFamC2F 1170, said that, in the absence of a specific travel proposal, his Honour couldn’t consider the Kuebler factors and the Line factors, and therefore couldn’t determine the travel application. 

Other judges have taken the opposite view.  Harper J, in Alard & Dinesh [2024] FedCFamC1F 260, considered a general application, and considered that, in the circumstances of that case, there could be no confidence that the parents could agree on any future travel arrangements.  Harper J therefore considered that it was in the child’s best interests to make the travel order, because it was the course that was least likely to lead to further litigation about the child. 

That hearing pre-dated May 2024, so it was the old Section 60CC which applied, and Harper J specifically referred to Section 60CC(3)(l), which was a provision for making a decision which is least likely to lead to further litigation.  

That provision does not have an equivalent in the current version of Section 60CC. In Ballard & Kellam (No 2) [2026] FedCFamC1F 115, Christie J nevertheless applied the same concept, citing Alard & Dinesh, and reached the same conclusion that it was in the children’s best interest in that case, to have final orders which were least likely to lead to further litigation. 

Of course, there’s still the catch-all provision, now under Section 60CC(2)(f), that says the court can take into account anything it considers relevant to the child’s best interests.  Therefore, the course least likely to lead to further litigation is still an argument that’s open to you and to your client in seeking a general travel order. 

Passport considerations

Having a travel order is all well and good, but a travel order does no good if the child doesn’t have a passport.  Without a passport, they won’t be able to leave Australia, and they won’t be able to enter the other country.

It’s important, in my view, to couple a travel application with an application for certain passport-related orders.  The typical sort of orders to consider are:

  • an order compelling the other parent to sign the passport application; and
  • frameworks for:
    • where the passports are to be held; and
    • when they get passed between the parents, including in time to obtain visas and that sort of thing.

For Australian passports, the usual requirement is that any person with parental responsibility has to sign the application.  

It is also possible to seek an order that your client be unilaterally permitted to apply for a passport.  Of course, you need to have evidence that supports that.  The typical things where I’ve seen clients achieve that sort of an order from the court, are where: 

  • the other parent either hasn’t engaged in the proceedings at all, and therefore there’s no confidence that they’ll sign anything; and/or
  • the other parent has persistently breached court orders.

Again, think about those things, put on the relevant evidence.

Is sole decision-making responsibility enough for a unilateral application?

You may also have a case where your client already has an order for sole decision-making responsibility or, if it’s a pre-May 2024 order, sole parental responsibility.  Technically, that is sufficient for them to apply unilaterally for a passport in the absence of another order, because their signature alone will meet the requirement that all persons with parental responsibility sign the application. 

I’m told by many instructors and clients, though, that the passports office doesn’t always fully understand, or isn’t fully aware, of what a sole parental decision-making responsibility order means.

Therefore, it is prudent to seek a specific order which expressly authorises the client to solely apply for the passport, with reference to Section 11(1)(b) of the Australian Passports Act 2005.

Sections 65Y – 65ZAA and Drafting Travel Orders

22 June 2026 /

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Overview

In this episode, discuss how the Family Law Act 1975 impacts on parents wishing to travel overseas with their children, some considerations to take account of when drafting travel-related orders, and also some things to avoid when drafting those orders. 

Sections 65Y to 65ZAA

You are probably aware that Part VII of the Family Law Act relates to children. It’s Division 6 of Part VII, which relates to parenting orders other than child maintenance orders, and Subdivision E of that Division deals with restraints on taking, or sending, children outside of Australia. It’s really important for both parties and lawyers to be really across the provisions of sections 65Y through to section 65ZAA, because breaches of those sections are an offence, and the penalty is imprisonment for 3 years. So they’re quite important. 

In essence, what those sections provide is that if a child is subject to an extant parenting order, or an application for a parenting order has been made in relation to a child, it’s an offence to take, or send, the child outside of Australia, unless it’s permitted by a court order, or there is authenticated written consent of the other parties  –  either the other parties to the parenting order, or the other parties to the application. 

There are corresponding provisions which make it an offence to retain a child outside of Australia for longer than permitted by the order or the written consent, but they have an exception where the person retains the child because it’s reasonably necessary to do so in order to prevent family violence. 

In my experience, it’s incredibly common for both parties and lawyers to overlook the requirement that the written consent to be authenticated. Authentication for this purpose is prescribed in regulation 51 of the Family Law Regulations 2024, which, in turn, refers to the legislation at Commonwealth level related to statutory declarations. In essence, what is required is that someone who’s authorised to take a statutory declaration endorses the written consent with two things:

  1. that they have taken reasonable steps to verify the identity of the person signing the consent; and
  2. that they’ve witnessed the signature. 

I don’t think, in 15 years of practice, that I have ever actually seen an authenticated written consent prepared for travel. I’m also not aware of anybody who’s travelled based on a written consent, which wasn’t properly authenticated, being prosecuted. Nevertheless, it’s an important thing for lawyers to be aware of, because, of course, we have obligations:

  1. not to aid anyone in committing an offence, and even a technical breach of those provisions is an offence; and
  2. to give correct advice.

So it’s really important that lawyers are across this stuff. 

Drafting Travel Orders

It’s important to draft travel-related orders clearly and precisely, both when drafting applications and when drafting consent orders.

It’s especially important for final orders. If final orders are in place, and a parent wants to travel with a child beyond what those final orders provide for, they’ll need, again, authenticated written consent or a further order of the court.

A further order will require a new application, and will be subject to s 65DAAA requirements. That applies even if they just want to travel for, say, one day longer than what the orders provide for. So it’s really important to get this stuff right. 

Time Periods

In terms of travel periods, if it’s an order for specific travel, for one particular trip  –  for example, you’re drafting an Application in a Proceeding to allow travel on an interlocutory basis  –  be sure to be really precise with the start and end times, because the travel will have to fall within those periods. Make sure you get really clear instructions on when the travel needs to occur, including transit times, travel time to the airport, and so forth. 

When you’re drafting more general orders that permit travel during particular classes of times, again, make sure you actually get instructions to ensure that what you’re drafting is sensible for the case.

Typically, the sort of orders that get drafted are:

  • permitting that either parent can travel with a child during their regular time during school holidays, as provided for elsewhere in the orders; or
  • that either parent can travel with a child during any time when they’ve got the child in their care. 

Conditions

It’s common to include conditions on the travel.

The most common one is a notice requirement. For example, the orders might say that, no later than 30 days before the proposed start of the travel, the travelling parent has to provide the other parent with certain information like:

  • itineraries;
  • flight details;
  • contact details; and
  • proof of travel insurance. 

You might also have restrictions on where the travel can occur.

The common ones which I usually discuss with clients, and often include in orders, are:

  • restrictions based on DFAT advice –  if DFAT’s advice for a particular location is do not travel or reconsider your need to travel, that might be excluded; and
  • restricting travel to non-Hague countries.

With a non-Hague restriction, you need to be really, really careful, because a lot of the destinations that Australians regularly like to travel to, aren’t signatories to the Hague Convention.

For example, Indonesia is not a signatory. If you prohibit non-Hague countries, then that family can’t travel to Bali, unless there’s some other provision in the orders or there’s consent. 

I also like to include another order after the main travel order, to the effect that, except as provided for in the travel order, the parties are restrained from taking the child or the children outside of Australia, except with prior written consent of the other party. And there’s two reasons I like to include that order: 

  • The first one is technically redundant, and that’s just to make it clear to the parties that, other than that, they need consent of the other parent. That’s the position under the Act anyway (see above), but it makes it a bit clearer for the clients. 
  • The exception in this order is where there’s prior written consent, which notably gets rid of that requirement for the consent to be authenticated. The reason I like that, particularly for final orders, is that it avoids the parties then having to go back to their lawyers, or to find a JP, to provide that written consent to ensure they’re not technically committing an offence, particularly if it’s for something small. 

Say, for example, the orders provide for travel during school holidays only, but the parties agree that the child can miss the first two days of the next term. That can then be just agreed in a WhatsApp message, or an email, or however the parties choose to communicate in writing, without having to see the lawyers or find a JP.

It could also be for when a party hasn’t complied with a notice period. For example, if the requirement is that they have to give 30 days’ notice for the itinerary, but they’re travelling because there’s been a death in the family and they need to go to the funeral urgently. 

Things to Avoid

I’ve got a real bugbear with a really common type of travel order that I see: an order that basically sets out all the stuff that I’ve suggested setting out, but still makes it subject to agreement by the other party.

That doesn’t actually permit anything. It just summarises the stuff that they should be talking about to inform whether or not they’ll agree. It leaves the parties no better off than just having no travel orders at all, and just leaving it to section 65Y through to 65ZAA.

In my view, drafting those sorts of orders is both a waste of your time as a lawyer, and a waste of your client’s money in paying you to draft it. 

The other thing that you need to be careful to avoid is just slavishly following a precedent. Orders need to make sense for the particular family, and in the context of the overall orders that are being drafted. 

A recent example I dealt with was a matter where orders were drafted on a final basis at a court hearing. Everybody was at court. There was a bit of time pressure because they were there for an interim hearing or a mention or something, and decided to draft final consent orders there and then.

As best I could ascertain, those orders were drafted by the independent children’s lawyer, using that independent children’s lawyer’s usual precedents. Those orders included a travel provision, very much in the way that I’ve recommended drafting it. It had the notice requirements, it had the restrictions, and all that sort of stuff in it.

And it said that the parties could travel at any time when the child is scheduled to regularly spend time with the party under the parenting orders.

What that provision failed to take account of was that the only regular time specified in those orders for the child to spend with the father was two nights on three out of every four weekends. The context there was the parties lived several hours apart. Somewhat unusually, those orders did not include any specific time during school holidays. The three out of four weekends just rolled all the way through the year.

The effect of that was that whilst there was, to the understanding of at least the father, an order that permitted him to travel  –  and he thought it meant he could travel quite liberally during the holidays  –  what the orders actually did was permit him to travel overseas for two nights on three weekends out of every four. 

Of course, given the distance from Australia (in this case, Victoria) to pretty much anywhere except New Zealand (or perhaps for people who live further north, parts of Indonesia, PNG, and other places around there), Australians can’t really do international travel in two nights. It’s not like we live on the border of Germany and France, and can just hop across the border and back for a weekend.

So those orders were really quite useless. 

In that particular case, the father wanted to travel overseas to see family. Both the parents, and the child, were born overseas, but he couldn’t do it. The mother wouldn’t agree. He had to make an application to the court, and it was listed for a s 65DAAA threshold hearing.

You need to be really, really careful with how you draft these orders and don’t look at the orders in isolation for travel. Look at them in the context of the overall case and the overall orders. 

Contempt

22 May 2024 /

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In this episode, I discuss contempt in family law, including types of contempt, the relevant tests, and how contempt interacts with Division 13A contravention proceedings.

Power to Punish Contempts

Section 45(1) of the Federal Circuit and Family Court of Australia Act 2021 provides:

The Federal Circuit and Family Court of Australia (Division 1) has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. 

Section 142(1) provides the mirror provision for Division 2.

Section 112AP of the Family Law Act

Section 112AP of the Family Law Act 1975 makes up the entirety of Part XIIIB – Contempt of Court. 

Application of s 112AP

Section 112AP(1) sets out the required elements for a finding of contempt under the Act:

Subject to subsection (1A), this section applies to a contempt of a court that: 

(a)          does not constitute a contravention of an order under this Act; or 

(b)          constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

Contempt other than Contravention

Section 112AP(1)(a) needs little explanation.  It relates to conduct which falls within the ordinary meaning of the word “contempt”. 

Some neat examples of such conduct arose in Medapati & Revanka (No. 3), where the husband:

  • “told the Court many times during the hearing that the proceedings were ‘moot’ and that they did not matter to him”;
  • “sought to intimidate [the judge], seemingly believing … that he might be able to intimidate [the judge]into finding in his favour”; and
  • “insincerely said to [the judge] at one point ‘I forgive you for your ignorance’” and then “blatantly lied to the Court when he was asked to confirm that is what he said”.

Forrest J was “quite satisfied that the husband [had] contemptuous feelings towards” his Honour and the Court.

Beyond Reasonable Doubt

The Full Court in Tate held that an application that a person be dealt with for contempt is “properly characterised” as “a proceeding for an offence” and that,  

Accordingly, the proceedings are criminal proceedings as defined in the Evidence Act and thus the standard of proof to be applied is as set out in s 141(1) of that Act, namely proof beyond reasonable doubt.

Elements

Aldridge J in Ganem & Ganem (No. 2) summarised the elements of a contempt as follows:

  • The respondent knew the terms of the orders.
  • The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent.
  • The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intended to do the act which is alleged to be the contempt. 
  • The act must involve a flagrant challenge to the authority of the court. …

What Constitutes a Flagrant Challenge to the Authority of the Court

The alleged contemnor must have known both the contents of the contravened order, and what the order meant.[3]

Johns J has put it as follows:

In order to establish a contempt, I need be satisfied that there has been a deliberate defiance of a court order, as distinct from a breach of a court order.

As the words “flagrant challenge” are not defined in the Act, the Court has adopted the dictionary definition: “glaring, notorious or scandalous”.

The Full Court in Kendling approved the following passage from English:

it must be established that the respondent knew of the undertaking or order and that his act or omission in breach of that order or undertaking was a wilful, that is, a deliberate act by him as distinct from accidental or inadvertent.  It is not necessary in addition to establish that the conduct was contumacious; that is, it is unnecessary to show that the act or omission was done with a deliberate intention to break or disregard the undertaking or order. 

The Full Court in Kendling held that a lack of adverse consequences to the other party to the proceeding does not absolve the contemnor.  The Court there said that there were at least two reasons:

the consequences of the most flagrant challenges to the authority of the Court could be avoided by the rectification of the breaches of the orders at any time prior to the imposition of sentence. There would be a clear incentive in those circumstances for parties to flagrantly challenge the authority of the Court in the hope that the other party would not incur the expense of bringing the application pursuant to s 112AP, safe in the knowledge that if and when that was successfully undertaken, remedying the breaches of the orders would obviate the imposition of sanctions pursuant to the section

where rectification of breaches of court orders can be achieved by financial transactions or payments, is that it has the potential to elevate the wealthy to a level of impunity not enjoyed by those less affluent.

Sentencing

Kent J, in Cluny & Skinner (No 2), conveniently summarised “general principles or guidelines” with respect to sanctions for contempt.  Essentially:

  • Section 112AP provides the code for dealing with sentencing.  State and federal sentencing laws have no application. 
  • The sentencing judge has a wide discretion, which is to be exercised transparently.
  • Review of punishments in other cases is of limited assistance, as each case turns on its own facts.
  • As the section provides no maximum term of imprisonment, the exercise of the discretion is particularly difficult.
  • Whilst the purpose of contempt proceedings is normally to coerce compliance with orders, another purpose may be punishment, for the purposes of individual and general deterrence, and for retribution.  Retribution may be called for because effective administration of justice requires demonstration that the court’s orders will be enforced.

Who can Apply?

Am application for a person to be dealt with for contempt may be made by:

  • a party to the proceeding, if the contempt is in connection with a proceeding;
  • the Marshal, or another officer, of the Court;
  • an officer or staff member of the Australian Federal Police; or
  • a member of a state or territory police force.

This is set out in r 11.71(3).

Rule 11.71 sets out the requirements and processes for contempt applications.  As a contempt proceeding is quasi-criminal, strict compliance with the Rules and legislation is required, so be sure to peruse r 11.71 before making an application.

Contempt vs Division 13A Contravention Proceedings

A party aggrieved by way of contravention of a parenting order may elect to seek that the offending party be dealt with for contempt (if the requisite flagrant challenge exists), in addition to, or rather than, seeking that the offending party be dealt with under Division 13A of Part VII.

In Wylie, Forrest J held (with my emphasis added):

Section 112AP(2) of the Act expressly empowers the Court to punish a person for contempt of the Court “[i]n spite of any other law”. I consider that provision confers power on the Court to hear and determine contempt proceedings against a party regardless of whether proceedings have or are being brought against the alleged contemnor pursuant to Division 13A of Part VII of the Act or a provision of any other State or Commonwealth legislation, such as the Queensland Criminal Code. As Coleman J went on to say in McClintock & Levier:

In my view it is not without significance that the legislation does not exclude from the operation of s 112AP breaches of parenting orders. Nor does Division 13A of the Act purport to exclude any breaches of parenting orders from the operation of s 112AP. That state of affairs cannot have eventuated through inadvertence. I thus perceive there to be two kinds of proceedings with respect to breaches of parenting orders.

Where the Contravention Constitutes a Crime

Where a person chooses to prosecute a contempt based on an alleged contravention of a parenting order, but without prosecuting a contravention under Division 13A, the obligation under s 70NDB to either adjourn or dismiss the contravention proceeding where the alleged contravener is subject of criminal proceedings arising out of the contravention is not mandated.

However, the Full Court in Sahari and Sahari (1976) FLC 90-086 said (my emphasis added):

Where the alleged facts constituting the contempt also constitute a crime the court has a careful and considered discretion to exercise. In some cases protection of the applicant will demand urgent action. In others the applicant’s protection can be left to the processes of the criminal law. Where only the affront to the court’s authority is involved and the same facts constitute a crime, the criminal processes should first be allowed to take their course. When they are concluded the court may then turn to the question whether the disobedience of its order merits further punishment in the public interest.

Conclusion

As you can see, an application for someone to be dealt with for contempt under the Family Law Act should not be made lightly.


Great care needs to be taken to comply strictly with the legislation and the Rules, and, of course, the standard of proof required is higher than what we are normally used to in family law, because it’s the criminal standard of proof beyond a reasonable doubt.

Family Law Amendment Bill 2023 – Initial Thoughts on proposed amendments to sections 60CC, 61DA and 65DAA

30 January 2023 /

The Federal Government has published an Exposure Draft of the Family Law Amendment Bill 2023 (“Bill”).  

If enacted, the Bill would, amongst other things, significantly amend section 60CC of the Family Law Act 1975 (“Act”) (which section sets out the factors which the Court is required to consider when determining the best interests of a child).

The Bill would also repeal s 61DA (the presumption that it is in a child’s best interests for both of their parents to have equal shared parental responsibility), and section 65DAA (the requirement to consider making an order for equal time or substantial and significant time when the Court makes an order for equal shared parental responsibility).

Whilst I have not had time to fully consider those aspects of the Bill, I have spent a bit of time reading them and comparing them to what they would amend.

I have not yet taken the time to read the other parts of the Bill.

Section 60CC Amendments

Section 60CC sets out the factors which a Court must consider when determining the best interests of a child.

What does it say now?

In its current form, section 60CC is unwieldy.  

It contains two “primary considerations” and 14 “additional considerations” (including a catch-all factor which allows the Court to take into consideration whatever it considers appropriate), many of which overlap, many of which are not applicable to many families, but all of which the Court must consider when determining what Orders are in a child’s best interests.

One of the factors applies only if the child is an Aboriginal or Torres Strait Islander child: the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, and the impact of any proposed parenting order on that right.   It is the 9th factor in the list of the 14 “additional considerations”.

Due to the overlap between many of them, I routinely group the section 60CC factors when making submissions in Court as follows:

  • the child’s relationships (4 overlapping factors);[1]
  • the risk of harm (3 overlapping factors);[2]
  • the child’s views;[3]
  • parental capacity, responsibility and involvement (4 overlapping factors);[4] and
  • orders least likely to lead to further proceedings.[5]

I note that the above list does not include the factor which applies only if the child is an Aboriginal or Torres Strait Islander child.  For whatever reasons, I have worked on very few matters where this factor was relevant, so it is not something I deal with routinely.

I have worked exclusively in family law for over 11 years (about half that time as a solicitor, and the other half as a barrister).  I find it better and easier to simplify the many factors into 5 essential categories (and, if I recall correctly, I lifted those categories from a judgment many years ago, so I am not the only one who does this).

I can only imagine how difficult it must be for self-represented litigants to understand, and engage with, s 60CC in its current form.

What would the Bill change?

The Bill would dramatically simplify s 60CC, with only 6 factors applying to all children.  

The existing factor which applies only if the child is an Aboriginal or Torres Strait Islander child remains in place, but is set out separately from the other factors, which will make it easier to find (and its existence more obvious) for cases where it’s relevant, and which will make it easier to skip where it doesn’t apply.

The generally applicable factors are:

  • what arrangements would best promote the safety of the child and each carer of the child;
  • the child’s views;
  • the developmental, psychological and emotional needs of the child;
  • the capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, with particular regard to the willingness of the carer to seek assistance and support in relation to those matters;
  • the benefit to the child of maintaining relationships with both parents, and other people significant to the child where it is safe to do so; and
  • a catch-all.

Almost all of the existing factors are essentially covered (with the notable exception of a requirement in the Bill to expressly consider making orders least likely to lead to further proceedings), but the proposed wording is far simpler and more accessible.

There appears to be an increased focus on safety, but, in my opinion, the change is marginal.  The existing section already requires the Court, when weighing the two “primary considerations”, to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with each parent.  Same concept, different language.

My gut reaction

In essence, the approach to determining best interests would remain much the same, but the section would become much easier and simpler to understand and apply.

Given the horrific rate of family violence in Australia, any increase in focus on the safety of children and the adults in their lives (however small it may be) can only be a good thing.

On balance, these amendments seem pretty good to me.

Section 61DA Repealed

The Bill would repeal s 61DA.

What is s 61DA?

Section 61DA provides that, when making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the parents of the child to have equal shared parental responsibility (“ESPR”).

The presumption does not apply when there are reasonable grounds to believe that a parent, or another person who lives with that parent, has committed child abuse or family violence.

The presumption can, in any case, be rebutted by evidence which satisfies the Court that it would not be in the child’s best interests for the parents to have ESPR.

Parental Responsibility and Confusion

We have a bit of jargon in Australian family law.  It seems to confuse a lot of people.  

The Act uses terms like “live with”, “spend time with” and “parental responsibility”.  In the general parlance, people in Australia are more likely, in my experience, to talk about “custody” and “access”, terms which are outmoded in Australian family law.

In my experience, with both clients and self-represented litigants, the meaning of parental responsibility is not immediately obvious to most non-lawyers.  Clients are often surprised to learn that parental responsibility relates to making decisions about children, but has nothing directly to do with where a child lives or with whom a child spends time (or when, or how often, or how long for).

However, a lot of lay-people seem to have heard or read about the presumption.  They may have googled family law, and read something about it in a Facebook group or forum, or perhaps even stumbled across s 61DA on AustLII and read it without context or an understanding of what the terms meant.

A great many people seem to be under the false impression that this presumption they’ve heard about means that, by default, the Court will order that a child will have equal time with each of their parents.

What’s the effect of repealing it?

To my mind, repealing s 61DA will have little effect on the majority of families.

The existence of the presumption means that there is a default position, and the evidentiary onus falls on the person who wants to deviate from the default.

The absence of the presumption just means that there is no default position.   It doesn’t mean that there is a different default position.  It doesn’t mean that, say, mothers will have sole parental responsibility by default.

It just means that the Court starts with a clean slate, assesses the evidence, and makes a finding as to what allocation of parental responsibility (whether between parents or other adults) is in the child’s best interests.

That is precisely what the Court does now anyway if there is anyone agitating to deviate from equal shared parental responsibility.

I expect that, in the vast majority of families going through separation, both parents will want ESPR, and the Court will continue to order it.

All that changes is that, when there is a dispute about allocation of parental responsibility, there isn’t a party (whether parent or otherwise) who bears a greater evidentiary onus than another party.

In other words, repealing s 61DA would just mean that, when there is a dispute about parental responsibility, each party will be required to adduce evidence in support of their position (which, in practice, happens in most cases already).

My gut reaction

This change will likely affect only a minority of cases before the Court.  In those cases, the outcome may be no different, as the presumption might be rebutted anyway.

The small shift in onus might just ever-so-slightly tip the scales of some power imbalances.  For example, a victim survivor of coercive control may have a slightly less difficult time in escaping further exercise of control by the other party by way of decision-making about a child.

The biggest benefit, to my mind, of repealing s 61DA would be an absence of a widely-held misconception that there is a presumption of equal time.

On balance, I think repealing s 61DA is not a bad idea.

Section 65DAA Repealed

The Bill would repeal s 65DAA.

What is s 65DAA?

Section 65DAA makes it mandatory for the Court to consider certain time arrangements for a child if the Court orders ESPR. 

In particular, where ESPR is ordered, the Court must consider whether an order for equal time is both in the child’s best interests and reasonably practicable.

If, after considering that option, the Court decides not to order equal time, it must then consider whether an order for the child to spend “substantial and significant time” with each parent is both in the child’s best interests and reasonably practicable.

It must consider those options even if no party to the proceeding seeks orders for equal time.

All of this is within the existing framework of the Court being required to make parenting Orders which are in the child’s best interests, and s 60CC setting out the factors to be taken into account in determining those best interests.

In other words, s 65DAA says to the Court something like “you must make Orders in the child’s best interests, and s 60CC tells you what to look at, but in exercising your discretion, you must at least think about these particular options, even if nobody is asking for them”.

My gut reaction

I’ve always found s 65DAA a bit weird.

If a party seeks an equal time arrangement, the Court will necessarily consider it.  If nobody seeks equal time, why should the Court spend time and resources considering such an arrangement?

The Court is required to make Orders in the child’s best interests.  

I’m pretty sure that if, after assessing evidence and hearing submissions about an equal-time arrangement, the Court finds that an equal time arrangement is in the child’s best interests, and that it is reasonably practicable, it will order it, whether or not some section of the Act specifically tells the Court to think about that option.

Conversely, if the Court finds that it’s not in the child’s best interests, or that it is not practicable, it won’t order it.  No amount of mandated consideration is going to change that.

The same goes for “substantial and significant time”.

I’m in favour of s 65DAA being repealed.

[1] s 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

s 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).

s 60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

s 60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

[2] s 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

s 60CC(3)(j): Any family violence involving the child or a member of the child’s family.

s 60CC(3)(k):  If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order.

[3] s 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

[4] s 60CC(3)(c): Extent to which each parent has taken, or failed to take, opportunities to participate in decision-making about, spend time with, and communicate with the child.

s 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

s 60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

s 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

[5] s 60CC(3)(l).

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