The Civil Law and Justice Legislation Amendment Act has been passed by both Houses of Parliament. It received royal assent on 25 October 2018, with the majority already in force. There are a few changes affecting the family law arena to take note of.
The Bankruptcy Act has now been amended and confirms that the Family Court of Australia has bankruptcy jurisdiction in proceedings when one of the parties in the marriage or de facto relationship is bankrupt and the trustee applies to have a Financial Agreement set aside.
De Facto Couples:
De facto couples have 2 years from separation to reach agreement as to property and maintenance matters and otherwise need permission from the Court to commence any such proceedings out of time. Under old laws, even if de facto couples consented to final property division orders being made out of time, they still needed permission from a Judge to do so (which is not the case for married couples who can consent to orders being made out of time). Section 44(5) of the Family Law Act has now been amended so that this is no longer required. So, if you’re in a de facto relationship and reach agreement relating to property or maintenance matters, even if it’s more than two years after separation, you can have those orders made through an Application for Consent Orders, rather than having to issue proceedings to seek leave. If you are approaching the two year timeframe (or for married couples the timeframe is 1 year from divorce), you should obtain legal advice from a family law specialist so that your rights are protected.
Costs Orders Against Guardians:
Section 117 of the Family Law Act has been amended to provide that personal costs orders against guardian ad litems may not be made by a Court unless acts or omissions by the guardian are ‘unreasonable or have delayed proceedings unreasonably’.
International Travel with Children:
Section 65Y of the Family Law Act makes it an offence to take or send a child overseas if there is a parenting order in place (unless a Court order permits the travel or there is specific consent in an approved form by the other parent). New laws will be in force soon which extend the offences to circumstances where proceedings for parenting orders are pending. A person will not have committed an offence if consent has been obtained or an order of the court has been made allowing the travel. Given the criminal consequences of a breach, it is very important to obtain advice from a family law specialist about this issue. For more information about international travel and what the court will take into account in exercising its discretion to permit travel, check out our last post ‘Can I take My Kid to Disneyland?’.
If you think you might be affected by any of these changes give Neilan Stramandinoli Family Law a call to discuss what they mean and how they apply to you.