The Family Law Amendment Bill 2024 seeks to modernise and improve Australia's family law system, focusing on the key areas of property division and family violence.
According to Commonwealth Attorney-General Mark Dreyfus KC, these reforms are intended “to make the division of property and finances safer, simpler, and fairer for separating families, especially where family violence is present".
We spoke to Kathryn Kearley, family lawyer and adjunct lecturer at the College of Law, to discuss the key aspects of the Family Law Amendment Bill 2024.
What are the key changes?
The key changes introduced by the Family Law Amendment Bill 2024 include:
- A clarification of the decision-making framework for property division
- Strengthened Family Violence protection, which includes companion animals
- Changes to Children’s Contact Services
- Procedural improvements, which include prioritising a less adversarial approach in property cases
“The Family Law Amendment Bill 2024 is the culmination of a lengthy review of the existing law and review of stakeholder contributions to the Exposure Bill as to shortcomings within the current legislation and practice,” Kathryn says. “The emphasis in this Bill on codifying common law into the statute so that Act becomes the source of law will assist parties and lawyers to resolve issues by making the decision-making process in property settlement clearer.”
Property Division & Assistance Animals
The Bill clarifies the decision-making framework for property settlement by codifying existing common law principles and giving greater clarity for parties as to decision-making framework for property settlement. It also introduces measures to recognise the economic impact of family violence in property division ensuring that victims are not disadvantaged.
The Bill also codifies concepts of liabilities and wastage providing clearer guidance for courts in assessing property contributions.
In addition, the Bill specifically considers pets in property settlements, addressing a previously overlooked area.
"We know that pets are too often used and abused in cycles of family violence,” Attorney-General Mark Dreyfus said. “The Bill would also allow the court to consider a range of factors, including family violence, when determining ownership of pets in settlements."
The measures in Part 1 of Schedule 1 of the Bill that establish a new framework in the Family Law Act for determining ownership of companion animals (pets) following relationship breakdown implement Article 16(1) of the Convention of the Rights of Persons with Disabilities (CRPD).
Assistance animals kept by a party to a marriage or a de facto relationship to support a person with a disability will not be considered a companion animal. This will ensure the assistance animal cannot be the subject of a dispute under the new framework for making orders about companion animals in the Family Law Act.
Strengthened Family Violence Protections
The Bill strengthens protections for victims of family violence by explicitly recognising its economic consequences in property and spouse maintenance cases. It also expands the definition of family violence to include economic and financial abuse, such as dowry abuse.
"The Bill would ensure family and domestic violence can be taken into consideration in property settlements for separating families,” Commonwealth Attorney-General, Mark Dreyfus, said.
The reforms include provisions to protect victims of family violence from further harm by restricting the disclosure of sensitive information.
These amendments aim to ensure that:
- Family law courts consider the economic and financial consequences of family violence when making property settlement or spousal maintenance orders.
- Property settlements or spousal maintenance payments negotiated outside of court also account for these consequences.
This will help:
- Victim-survivors of family violence obtain a fair division of property after separation, recognising their often-significant long-term economic disadvantage.
- Parties and their dependent children maintain an adequate standard of living following separation.
The measures in Part 1 of Schedule 1 align with Article 16(1) of the CRPD and Article 20(2) of the ICCPR. They address the disproportionate impact of family violence on women, particularly First Nations women and women with disabilities. By considering the effects of family violence, these measures help protect individuals from exploitation, violence, and abuse, including gender-based violence.
Establishes regulatory framework for Children’s Contact Services
The Bill establishes a regulatory framework for Children's Contact Services (CCS), ensuring that these services provide safe and child-focused support for families unable to manage contact arrangements independently.
The Bill builds on the family law reforms which commenced on 6 May 2024 and address parenting decisions in family law matters. The Attorney-General Mark Dreyfus said, "The Bill would ensure that the care and housing needs of children are considered in financial and property decisions."
Expanding the less adversarial approach
"The Bill would expand the court’s ability to use less adversarial approaches in all types of proceedings, not just for children’s matters, supporting parties to safely raise family violence risks and ensuring the safe conduct of proceedings,” the Attorney-General said.
The Bill introduces several procedural reforms to streamline family law proceedings, including:
- Clarifying the duty of financial disclosure
- Enhancing the arbitration regime
- Improving case management practices
- Safeguarding against the disclosure of protected confidences
What does this mean for family lawyers?
The Bill has several implications for family lawyers:
- Increased Clarity: The amendments provide greater clarity on the property decision-making framework, enabling lawyers to better advise their clients so they can navigate the legal process toward resolution of their case.
- Enhanced Advocacy: The focus on family violence requires lawyers and courts to be well-versed in the economic consequences of such violence and to give protection to victims.
- Procedural Changes: Lawyers will need to review the law and adapt their practice to the new laws and the procedural reforms
- Ethical Considerations: The Bill's emphasis on protecting the vulnerable including children, necessitates adherence to ethical standards including the best interests of clients.
“The Family Law Amendment Bill 2024 is a massive but timely overhaul of Australia's family law system as it extensively addresses property division, family violence, and procedural efficiency,” Kathryn says. “The amendments are also aligned with human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). The Bill should create a more equitable and safer environment for families navigating separation. All lawyers working in family law will need to fully understand the amendments and apply them to legal practice.”
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