Over the past few years there have been several inquiries into the Family Law system and the Family Law Act (the legislation governing Family Law matters in Australia).
On 18 September 2023, the Albanese Government released draft legislation for further reforms to the Family Law Act so that the system can be more accessible, safer and simpler to use. Significant proposed changes in the exposure draft include:
Recognising the financial impact of family violence in property settlements
Currently, the Act lacks specific guidelines for factoring in the financial repercussions of family violence when it comes to property settlements, leaving such considerations largely up to case law and the Courts.
The exposure draft introduces new principles that would enable the Court to consider the effect of:
- Impact of family violence: This includes not only physical or emotional violence but also economic or financial abuse and its effect on each party’s ability to contribute to the shared property pool, and
- Effect of family violence on circumstances: The current and future circumstances of an individual’s present and future situation. This may encompass the need for ongoing medical treatment or therapy as well as any limitations in income-earning capacity caused by such violence.
Should these proposed changes occur, it means that the financial impact of conduct involving family violence may be more consistently considered in the process of determining how property should be divided following the breakdown of a relationship.
This move toward clearer and more comprehensive guidelines ensures a more compassionate approach to addressing the financial aftermath of family violence in property settlements.
New principles for conducting property or other non-child related proceedings
The Family Law Act currently contains principles, known as ‘Less Adversarial Trial’ (LAT) principles. These are designed to guide the Family Court in handling child related cases with a focus on safety, fairness, and the reduction of legal formalities and delays where suitable. However, there are currently no equivalent LAT provisions for property settlement matters or other non-child-related proceedings (such as child support).
In response to this gap, the exposure draft creates new LAT principles for use in property and other non-child related proceedings. As currently drafted, these principles require the Court to actively direct, control and manage proceedings in a way that protects the parties from family violence, fostering fairness, efficiency, and protection.
Duty for financial disclosure in the Family Law Act
Parties in Court proceedings for financial matters have a duty to provide relevant financial information to each other and to the court. This is known as the ‘duty of disclosure’ and it is contained within the Family Law Rules.
The exposure draft introduces a duty on separating couples to provide financial information to each other. To encourage compliance, the proposed amendments emphasise compliance at the start and throughout the case and outline consequences for non-disclosure.
The draft also introduces an obligation on lawyers and family dispute resolution practitioners to properly advise the parties about disclosure and the consequences that may apply if it is not followed; and encourages compliance.
Simplifying the family law arbitration framework for separating couples
Separating couples have the option of utilising arbitration, a procedure where a mutually agreed-upon arbitrator issues a binding decision on property division and financial arrangements.
This can occur privately, before Court proceedings, or when they are underway. The scope of issues that can be arbitrated may vary depending on the specific arrangement in place.
The exposure draft makes the list of issues that can be dealt with in either type of arbitration the same. The draft also allows arbitrators to apply to a court for orders to keep the process going, or to end the arbitration if there has been a change in circumstances. This will ensure that separating couples who agree to participate in arbitration are not forced to proceed with an unfair process.
Providing a regulatory framework for the Children’s Contact Services (CCS)
CCS facilitates safe neutral interactions between children and separated parents, especially in cases where families struggle to manage contact arrangements independently. This service is provided by a mix of private and government-funded organisations. Currently, there are no mandated operating standards for CCS providers.
The exposure draft provides a framework that enables the Government to make Accreditation Rules governing the operations of both private and government-funded services. These proposed amendments also provide protection against the sharing of certain confidential information. Additionally, they introduce penalties for non‑compliance with these rules and establish a new duty for contact services to promptly report incidents of child abuse or violence to relevant authorities.
Clearer operation of Commonwealth Information Orders
The Family Law Act grants the Court authority to issue orders requiring a Commonwealth department and agency to disclose information including the location of a child. Additionally, it can also require information about actual or threatened violence against the child, a parent of the child or any individual residing with the child.
The exposure draft proposes to make two changes:
- Currently the law is unclear about whether a department or agency must provide information about violence if they do not have information about the location of the child. The exposure draft clarifies that violence information must be provided even when a department or agency does not have this information. This is to ensure that a Court is aware of any actual or threatened risk of violence to a child and other family members.
- The exposure draft also proposes to broaden the definition of family members for whom a department or agency must provide information concerning actual or potential violence. This includes biological relatives, step-relatives, foster relatives, and other people the court deems relevant.
A clear framework for costs orders in family law
Currently there are many provisions across the Family Law Act and court rules about costs in family law matters which are leading to confusion and inefficiency.
The exposure draft contains proposed amendments to put these provisions into one place and clarify when the court can order a party in a parenting matter to contribute towards the costs of an Independent Children’s Lawyer (ICL).
Clarifying information sharing in Family Court Proceedings
The Family Law Act currently prohibits people from sharing information provided in family counselling, family dispute resolution, risk screening and post‑separation parenting programs in Court proceedings, unless a party or a child is at risk of abuse or harm.
The law has been interpreted by some courts to mean that the inadmissibility provisions only apply when a proceeding is started under the Family Law Act. This means that information from these confidential family law processes may be shared in proceedings (including non-family law proceedings) in State and Territory courts. This could cause unintended harm to people who assumed their disclosures were made confidentially.
The exposure draft clarifies that any information shared from these processes cannot be used in Commonwealth or State or Territory court proceedings unless a party or child is at risk of abuse or harm. An exception would be in State or Territory coronial Courts, to recognise the unique role they have in the justice system.
Extending Court case management and procedural authority
An aim of the exposure draft is to make key sections of the Family Law Act clearer to understand. This draft includes a range of amendments geared toward improving the Court’s ability to efficiently manage family law cases. They include allowing the Court to reject applications for parenting orders when compulsory family dispute resolution prerequisites are not met (unless the applicant holds a valid exemption). Additionally, it grants the Court the authority to decide on divorce applications without requiring the parties to attend a formal hearing.
What happens next?
The proposed reforms to the Act represent a significant step toward creating a safer more accessible and streamlined system for families facing challenging circumstances. The reforms address key areas including:
- Recognising the financial impacts on family violence in property settlements.
- Introducing clearer principles for property and non-child related proceedings.
- Reaffirming the duty of parties to provide relevant financial information.
- Simplifying the arbitration process and;
- Providing a regulatory framework for Children’s Contact Services.
Next steps involve awaiting the results of the consultation process, which will remain open until 18 November 2023. Following this period, we will closely monitor the developments and progress of the Bill throughout this year and next. Our family law team will provide further updates as they come in.