The Federal Government has introduced a new Family Law Amendment Bill into the Commonwealth Parliament. The Bill makes changes to the property provisions in the Family Law Act, and also proposes changes in other areas of the Act. In August 2024 the Bill passed through the House of Representatives and passed through the Senate on 29th November 2024. The proposed changes to the Family Law Act are designed to simplify the system making it easier and safer to navigate. The amendments will come into effect on the 10th June 2025.
1. Property
Under the Family Law Amendment Bill 2024, the process of determining a property settlement will be codified as follows:
- A court will be required to identify the existing legal and equitable rights and interest of the parties in any property, and the existing liabilities of the parties.
- The court is then to consider the contributions of the parties.
- The Court will look at the “future needs” of the parties including current and future circumstances.
- And the final step of the court is to make an order once satisfied that the outcome is just and equitable.
2. Future Needs
Under the present Act, a court dealing with a property application under section 79 is directed to take into account the “future needs” of the parties. The amendment to the Bill will require the court to consider the need to provide adequate housing for a child under 18 years of age.
3. Intentional or Negligent Waste
Intentional or negligent wastage will also be considered with the changes, giving effect to court decisions concerning wastage such as excessive gambling. The court will also consider liabilities by either party such as a taxation liability, unsecured loans or gambling debt. This includes when the liability was obtained and whether both parties gave consent.
4. Family Violence
The new Family Law Amendment Bill will consider family violence in 3 ways:
- specifying family violence as a factor which can impact a person’s ability to make financial and non-financial contributions and
- requiring the court, where relevant, to take into account the impact which family violence has, or could have, on current and future circumstances of the parties.
- listing ‘economic or financial abuse’ as an example of behaviour that may constitute family violence. Examples include unreasonably denying a family member financial independence, withholding financial support for e.g. Child Support Payments and Coercing a person to obtain money as a dowry or abusing the use of power in relation to the practice of a dowry.
5. Companion Animals
The new bill introduces the definition of companion animals (i.e. family pets). Currently, the Court can award joint custody of a family pet, however, the amended bill will be limited to giving ownership to only one of the parties, or for the animal to be sold. Matters for the Court to consider include the circumstances under which the animal was acquired and cared for, family violence, abuse of the animal by a party, the attachment of a party or child to the animal, and the ability to care for the animal in the future.
6. De Facto Relationships
Similar changes will be made to those provisions of the Act dealing with de facto relationships.
7. Less Adversarial Trials
The Bill will extend the Less Adversarial Trial (LAT) principles already available in the Family Court for child-related proceedings to other proceedings under the Act including Property Settlement matters and non-child-related proceedings. Parties can choose to adopt this procedure or it may be court-ordered. A Less Adversarial Trial would see the court direct and manage the proceedings with a focus on fairness, and safety protecting parties from family violence. In a LAT trial, it will be the responsibility of the judge to determine what evidence will be reviewed by the court instead of the lawyers.
8. Duty of Disclosure
A new section codifies a duty of disclosure in all financial and property matters. The duty commences before proceedings are issued and extends to the conclusion of those proceedings. This includes proceedings in relation to property settlement, spousal maintenance, setting aside a financial agreement, the allocation of superannuation interests and various other matters. Solicitors are required to advise their clients concerning this duty of disclosure.
9. Children’s Contact Services
Currently, Child Contact Services provide a safe place for separated parents to maintain contact with Children where it would otherwise be unsafe or not possible to do so independently. This can be through a government-funded or private operation. However, there is no regulation of these services. The Bill includes the accreditation of persons and entities providing child contact services.
It also sets out the types of “safety information” possessed by an accredited person or entity, and when and to whom such information may be disclosed.
10. Section 60I Certificates
The Bill will make it mandatory to file a section 60I Certificate unless a court grants an exemption. The law already requires separating families who have a dispute about children to make a genuine effort to try and resolve the dispute through Family Dispute Resolution (FDR). FDR is a type of mediation run by registered Family Dispute Resolution Practitioners.
Most people can work things out and don’t need to go to court to have matters resolved. However, an accredited FDR practitioner can issue a section 60I certificate where FDR has failed.
11. Divorce
Under the new changes, court attendance requirements for divorce applications will be the same for both sole and joint applications.
The Bill removes the requirement that parties attend a divorce hearing if there are any children aged under 18. However, the Court must still be satisfied that appropriate arrangements are in place for the children’s care, welfare, and development or that there are circumstances by reason of which the divorce should take place.
Additionally, parties married for less than two years will no longer need to file a certificate confirming they have completed counselling or considered reconciliation with professional assistance.
The requirement to be separated for at least 12 months and one day before applying for divorce remains unchanged.
12. Commonwealth Information Orders
A Commonwealth Information Order (CIO) is a court order made under section 67N of the Family Law Act 1975. It requires the Subpoena Team at Services Australia to give the court information about a child’s location.
The Bill will clearly set out the obligations of a government department to comply with a Commonwealth Information Order. This includes providing information about actual or threatened violence in relation to a Child or other family members.
12. Protected Confidences
The Bill introduces a new Division for “Protecting sensitive information”. The amendments are intended to limit the use of information or documents (“a protected confidence”) given by a “protected confider” to a “protected confidant”. These include health service, specialist sexual assault or family violence service. It covers those services which assess, manage, treat or record a persons physical or mental health, or dispense medicines. The court can direct that evidence not be provided in proceedings if it would disclose a protected confidence. The Court can also order that a document not be produced, inspected or copied and the Court would need to be satisfied that disclosure could cause physical, mental or financial harm.
13. Costs
There are currently numerous provisions within the Family Law Act and court rules regarding costs in family law matters, causing confusion and challenges with applications. The Bill will replace existing provisions. These include the timing of an application for a costs order, the type of order that can be made, methods of assessment, and costs against a non-party.
14. Directions given to Superannuation Trustees
A new subsection is to enable the Minister to give a written direction to a trustee of an eligible superannuation plan, requiring them to do a thing prescribed by the regulations in relation to the approved method or factor. The trustee of an eligible superannuation plan who receives a direction would be committing an offence if they did not intentionally comply with that direction.
Review of Amendments
The Bill provides for a review of the amendments after a three-year period.
If you have any questions about the Family Law Amendment Bill and how it relates to your circumstances, contact us for a chat with our team.
Disclaimer: The content presented in this article is offered for informational purposes and should not be construed as legal advice or a substitute for professional guidance. If you have questions or require legal assistance, we strongly recommend consulting with a Solicitor to address your individual circumstances.