Following a series of reviews of the family law system, on 22 August 2024 the Australian Government introduced the Family Law Amendment Bill 2024 into the Commonwealth Parliament. The Bill sets out very significant amendments, which aim to modernise and improve the family law system in Australia. We spoke with accredited family law specialist Kathryn Kearley to gain a deeper understanding of the bill, its key amendments and implications.
What does the Bill propose?
“This Bill builds on the Albanese Government’s landmark family law reforms which came into effect on 6 May 2024,” said Attorney-General Mark Dreyfus. “The Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023 put the best interests of children at the centre of all parenting decisions in family law matters and established new information sharing arrangements to protect against family safety risks. The Family Law Amendment Bill 2024 would ensure family and domestic violence can be taken into consideration in property settlements for separating families.”
As Kathryn Kearley explains, these reforms follow a number of reviews of the family law system undertaken in recent years, including the Australian Law Reform Commission’s Report issued in 2019.
Kathryn highlights that the Bill proposes to amend the Family Law Act 1975:
- to enable the court to control and manage conduct of property and other proceedings not about children, including to address family violence and ensure appropriate evidence is before the court
- to codify the duty of disclosure of parties relevant to financial information
- to fine tune the arbitration regime in family law
- to provide regulatory framework for Children’s Contact Services
- to safeguard against disclosure and adducing of evidence arising from communications made in a professional confidential relationship
- and 5 other Acts, to clarify aspects of family law and support operation of the Federal Circuit and Family Court of Australia and the Family Court of Western Australia, and
- to provide for a review of amendments contained by the Bill.
“More specifically, the Bill was referred to the Senate Legal and Constitutional Affairs Committee and it is to report on it by 30 October 2024,” Kathryn says.
The Bill is comprised of a number of schedules:
- Schedule 1: Property reforms
- Schedule 2: Children’s Contact Services
- Schedule 3: Case management and procedure protecting sensitive information
- Schedule 4: General provisions including costs orders
- Schedule 5: Statutory review of the new laws three years after the amendments commence
Codification of Common Law principles in Property Cases
“Schedule 1 of the Bill sets out the reforms by codifying the common law decision-making in property cases,” Kathryn says.
This codification included:
- Identifying legal and equitable interests in property and the existing liabilities of the parties
- Considering past contributions of the parties
- Considering current and future circumstances of the parties, and
- Ensuring that orders are just and equitable to the parties
In addition to this, as Kathryn explains, the Bill adds more factors to be taken into account and this means that in property adjustment cases, the Court can consider:
- The effect of any intentional or reckless material waste of property or financial resources
- The liabilities incurred by parties and the circumstances of these liabilities
- The extent to which a party bears parental responsibilities and care for a child under 18 years of age and so this can include living arrangements and the need for either party to provide a home for the child, and
- The impact of family violence inflicted by one party upon the other
The Bill also provides useful definitions:
“Family violence is defined in the Bill as referring to economic or financial abuse,” Kathryn says. “This definition is expanded to include unreasonably denying financial autonomy, unreasonably denying financial support and dowry abuse.”
As Attorney-General Mark Dreyfus observed, “Pets are too often used and abused in cycles of family violence. The Bill would also allow the court to consider a range of factors, including family violence, when determining ownership of pets in settlements.”
“And so, the family law Courts will be able to make orders about companion animals in property proceedings,” Kathryn confirms. “Further, as disclosure is addressed in the Bill, lawyers and FDR practitioners have changed obligations in regard to disclosure.”
How can lawyers learn more about the Bill?
Kathryn compiled the following resources for lawyers:
- Explanatory Memorandum
- A summary of the Bill
- The Media Release from the Attorney-General
- Information Session from the Attorney-General’s Department about the Family Law Amendment Bill 2024, including changes made in response to feedback after release of the earlier Exposure Draft Bill (YouTube) and (Slides)