In August 2024, a new Bill to further amend the Family Law Act 1975 (Cth) was tabled in Federal Parliament (“the Bill”). While the previous amendments dealt primarily with Parenting matters, this Bill focuses mainly on Property disputes.
Property disputes
The major change in the Bill is the codification of the family law property settlement process into one clear section of the Family Law Act 1975 (Cth) (“the Act”).
It has been a well-accepted principle for many years that Family Law Property matters must be resolved by following a 5-step process:
- Determine whether it is just and equitable to change the parties’ existing interests;
- Ascertain what each party’s assets, liabilities, and future needs (“asset pool”) are;
- Consider each party’s contributions to the asset pool;
- Identify any future needs for each of the parties; and
- Assess whether the final distributions (i.e. “split”) are “just and equitable”.
While some of these steps were already included in the Act, they were spread across multiple sections. For example, the factors to consider when identifying future needs were outlined in the part of the Act relating to Spousal Maintenance, and were simply referenced in the property settlement part. Other steps, such as the step to ascertain the value of the asset pool, were not in the Act at all.
The Bill outlines all five steps as part of the existing section 79 of the Act, including moving the “future needs” factors into that section (rather than referring to a different part of the Act).
Pets
For a long time, family lawyers and self-represented parties alike have clashed over what the law required in relation to pet ownership after a couple separates. The case law is inconsistent, and there was no guidance in legislation.
The Bill includes specific provision for how pets are to be dealt with under the Act. In particular, it provides that pets can only be owned by one party – parties cannot share ownership of pets.
The Bill goes on to specify the considerations the Court will make when deciding which party will retain the pet:
- the circumstances in which the pet was acquired;
- who has ownership or possession of the pet;
- the extent to which each party cared and paid for the pet
- any family violence to which one party has subjected or exposed the other party;
- any history of actual or threatened cruelty or abuse by a party towards the pet;
- any attachment by a party, or a child of the marriage, to the pet;
- the demonstrated ability of each party to care for and maintain the pet in the future, without support or involvement from the other party;
- any other fact or circumstance.
Domestic and Family Violence
While there is case law that supports the consideration of domestic and family violence when determining a “just and equitable” property settlement,[1] this was rarely applied in practice, as parties and practitioners alike struggled to obtain clarity over how the case law applied to other circumstances.
The Bill includes specific provision to account for “the effect of any family violence” on a party’s contributions or future needs. This does not mean that the mere existence of domestic and family violence in a relationship will allow the victim/survivor to receive a higher property settlement – it simply means that where the domestic and family violence has impacted the victim/survivor’s contributions or future needs, that can be taken into account.
For example, if person A has been unable to complete or maintain a qualification due to the control or violence of their partner, person A may receive an adjustment of the property settlement in their favour to account for their lack of qualifications and lower income earning capacity. Alternatively, if person A earnt significantly less than their partner due to the control or violence of their partner (e.g. their partner was their employer, or their partner restricted the hours they could go to work), their financial contribution may be given more weight to account for the extenuating circumstances they were made in.
Children’s Contact Centres
Another major proposed change in the Bill is to introduce a regulatory framework for Children’s Contact Services. Currently, these essential services have no significant oversight or regulatory requirements.
The proposed changes to the Family Law Act introduce the ability for the Federal Government to generate and regulate accreditation rules and processes for Children’s Contact Centres, and to enforce penalties for services that are not accredited.
The changes also specify how confidential information is to be handled by the Contact Centre, and what evidence from a centre is admissible in Court.
Interestingly, there has recently been a review into Family Relationships Services, including Contact Centres, which was completed by the Australian Institute of Family Studies at the request of the Attorney-General. Some of the findings of this review included the need to simplify access to family relationship services, including Children’s Contact Centres, to better and more efficiently assist struggling families. You can read more about this report here: https://www.ag.gov.au/families-and-marriage/publications/support-separating-families-review-family-relationships-services-program
Vocare Law is well equipped to assist family law clients with a wealth of collective knowledge and over decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring you are well advised as to the amendments relating to property coming up in the Family Law Act. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Tabitha Gulley.
The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.
Footnote
