Upcoming changes to the Family Law Act
The Family Law Amendment Act 2024 makes significant changes to Family Law in Australia. The changes to the Act come into effect on 10 June 2025 and will affect both parenting and property settlement matters for both de facto and marriage relationships, as well as divorce proceedings.
Many of the changes directly affect property settlement proceedings for both married and de facto couples.
The definition of family violence will also be amended to clearly recognise economic or financial abuse as a form of family violence. Existing examples of economic or financial abuse will be expanded to include unreasonably denying financial autonomy, and dowry abuse.
This article focuses on financial and property proceedings, including changes to the duty of disclosure, case management pathways, and children’s contact services.
The Family Law Rules already require disclosure to be provided however the Amendment Act will elevate this duty in financial or property matters. Parties to a matter have a duty to provide all relevant fianncial information and documents to each other and to the court. The duty of disclosure applies from the preparation of proceedings until the matter is resolved.
Your legal practitioner also has an obligation to make you aware of your duty of disclosure, and must encourage you to comply by informing you of your duty and consequences of non-compliance. If you do not comply with the duty of disclosure, conseuqences may be significant and can include:
· Punishment for contempt of court by way of a fine or imprisonment;
· A costs order against a party; or
· The court taking into account the non-compliance in determine orders for the property settlement.
Other changes to the Act include codification of previous case law, and clarify the process the court must follow when determining a property settlement. The Act will now include that the court must consider whether it is just and equitable to make any order adjusting the parties’ property interests, and the court will only make an adjustment of the parties interests in property where they are satisfied that it is just and equitable to do so. This principle, confirmed in the case of Stanford v Stanford [2012] FamCAFC 1, is already considered by the court in the decision-making process for property settlement matters.
The pathway the court must use when deciding property matters will likely remain similar to the already commonly applied pathway, but all steps in the process will now be codified. The court uses the following steps in the decision making process:
Identify the parties’ legal and equitable rights and interest in any property;
Identify the parties’ liabilities;
Assess each parties contributions, including each person’s direct and indirect financial and non-financial contributions to the parties’ property, contributions made to the welfare of the family including children (for example as home-maker or parent), the effect of any family violence on each parties’ contributions during the relationship, and assess the effect of the proposed orders on the parties’ future earning capacity; and
Consider the parties’ current and future circumstances.
When assessing the parties’ current and future circumstances, the amendments will require the court to consider a large number of factors including the effect of any family violence age, health, parenting roles, and income earning capacity.
Prior to these amendments, the case of Kennon v Kennon [1979] was precedent for the courts to consider serious family violence when determining property settlements. In Kennon the court held that the sections 75 and 79 of the Act allowed for an assessment of consequences of family violence upon satisfaction of the following elements:
A course of violence conduct must be established;
The violence conduct must have had a discernible impact on the victim; and
The victim’s contributions to the relationship must have been made significantly more arduous as a result of the violent conduct.
While the new amendments are as yet untested by the court, it is likely that the new amendments will allow a broader consideration of family violence.
The changes will also include wastage as a factor to be considered by the court, when determining property settlements. Under the amendments, the court must consider whether a party has intentionally or recklessly caused material wastage of property or financial resources.
The court will also be permitted to consider liabilities, and where a party has incurred any liabilities, the court must consider the nature of the liabilities, the circumstances relating to them and the impact of the liability on the parties.
If you are separating from your partner and you own a pet, the amendments also allow you to make arrangements for your pet without going to court. If you cannot agree on the future care arrangements for your pet, th amendments will allow you to make an application for a family law court order. The court will then consider a specific list of matters including any animal abuse, and the attachment of each party to the pet. However, there are some limitations to the orders that can be made. For example, the court cannot make an order for joint ownership, or arrangements for sharing possession of family pets.
Any existing property orders are not affected because of the changes to the law. If you have an existing order, you must continue to follow those orders.
The changes to the Family Law Act will apply to all new and existing proceedings, except where the matter has commenced to a final hearing. If you have filed an application for a property matter prior to 10 June 2025 and it has not yet commenced to a final hearing, the new law will apply. If you currently have a matter before the court and are self-represented it is recommended that you seek legal advice to understand how these changes will impact you.
