The Family Law Amendment Act 2024 comes into effect from 10 June, 2025. The changes brought in by this Act focus on the financial and property aspects of relationship breakdown. They also affect other areas of the Family Law Act, including:
- Children’s contact services
- Case management of divorces and family dispute resolution (FDR)
- Protecting sensitive information
Schedule 1: Property
Family Violence Definition
The amendment more clearly recognizes economic or financial abuse as family violence within section 4AB of the Family Law Act. It:
- Moves existing examples of economic or financial abuse into a stand-alone provision
- Expands an existing example on unreasonably denying financial autonomy
- Includes new examples of dowry abuse
Property Framework Amendments
The amendments codify aspects of the case law to clarify the process for determining a property settlement.
The court must consider whether it is just and equitable to make any order adjusting the parties’ property interests. The court is not required to make an order and will only do so if satisfied that it would be just and equitable. This consideration permeates the entire decision-making process, which involves the following steps:
- Identifying each party’s legal and equitable rights and interests in any property, and their liabilities. Considering what each party contributed to the relationship before, during and after the relationship.
- The court will then allocate an overall percentage entitlement to each party based on these contributions.
- Considering the parties’ current and future circumstances. At this step, the court may depart from its assessment of the party’s contribution-based entitlements and make an adjustment in favor of one party to account for their current and future circumstances, if it would be just and equitable to do so.
- Determining the final overall percentage split for dividing the property. Court orders will allocate specific property, finances and liabilities to the parties to implement this split.
The order of the decision-making steps above reflects how they are likely to be applied in most property matters. However, family courts can approach these steps in any order to achieve a just and equitable outcome.
New Considerations in Property Proceedings
Contributions
The amendments insert family violence into the list that the court can consider when assessing contributions. Where relevant, the court will consider the effect of family violence to which one party has subjected or exposed the other party, on the ability of a party to make financial or non-financial contributions or contribute to the welfare of the family.
Current and future circumstances
The amendments include a new list of factors the court will consider when assessing the current and future circumstances of the parties. These largely replicate or consolidate the list of factors the court considered prior to the changes brought in by the Amendment Act, with the addition of the following new factors:
- Family Violence: Where a party was subjected or exposed to family violence, this factor permits the court to consider the economic effect of any family violence that a party was subjected or exposed to, on their current and future circumstances. This allows for a broader consideration of family violence than previously provided in case law.
- Wastage: Where a party intentionally or recklessly caused any material wastage of property or financial resources, this factor permits the court to consider the effect of that wastage in assessing the parties’ current and future circumstances.
- Liabilities: Where the parties incurred any liabilities, this factor permits the court to consider the nature of the liabilities, the circumstances relating to them and the impact of those liabilities on the financial future of the parties.
- Housing needs: This expands an existing factor regarding the care of a child under 18, allowing the court to consider the need of either party to provide appropriate housing for such a child.
Spousal Maintenance
The Amendment Act inserts family violence into the list of factors that the court can consider when assessing what order may be proper for spousal maintenance. Where relevant, the court will consider the economic effect of family violence to which one party has subjected or exposed the other party.
Companion Animals
Under the Family Law Act, animals owned by parties to a relationship are treated as property. The Amendment Act adds a framework for dealing with family pets in property cases, separate from other property. The court can make interim and final orders about a pet that meets the definition of companion animal, including orders by consent.
Definition of a Companion Animal
The Amendment Act defines a companion animal as an animal kept primarily for companionship. It does not include an assistance animal or an animal kept as part of a business, for agricultural purposes or for use in laboratory tests or experiments.
Factors the Court Will Consider
The Amendment Act inserts a list of factors the court must consider for orders dealing with a companion animal. This includes considering:
- Any history of actual or threatened abuse towards a companion animal,
- Any attachment by a party or a child of the relationship to the companion animal, and
- The ability of each party to care for the companion animal in the future.
Less Adversarial Approach
The Amendment Act expressly sets out the court’s powers to more actively manage any type of family law proceedings through a less adversarial approach, aiming to reduce intimidation and stress of court processes for families.
The approach also suspends parts of the rules of evidence, unless the court orders they should apply to an issue in proceedings in exceptional circumstances.
Previously, the approach could only be applied in parenting (Part VII) proceedings and in property or financial proceedings where there were concurrent or past proceedings involving parenting matters, and then only with the parties’ consent.
The Amendment Act keeps the existing arrangement where the less adversarial approach will apply to all Part VII proceedings automatically. It specifies that the less adversarial approach will only apply to non-Part VII proceedings (including property and financial matters) either with the consent of the parties or at the discretion of the court.
Duty of disclosure in property and financial matters
The Amendment Act elevates the duty of disclosure in financial or property matters from court rules into the Family Law Act. Separating couples have a duty to give all relevant financial information and documents to each other and the court. The duty applies from the point a party is preparing to start, or is litigating, a property or financial proceeding and continues to apply throughout the proceedings until the matter is finalised.
Consequences of non-compliance with the duty of disclosure can be significant and include:
- Punishment for contempt of court with a fine or imprisonment
- Costs orders against a party
- The court taking the non-compliance into account in determining what orders to make in a property settlement
Arbitration
The Amendment Act specifies a single list of matters that can be arbitrated. This removes an unnecessary distinction between the types of matters that can be arbitrated privately or by court order.
Schedule 2: Children’s contact services
The Amendment Act enables the Australian government to establish accreditation rules governing the provision of children’s contact services (CCS).
Once in place, courts will only be able to refer families to accredited CCS. Penalties can apply for a CCS’s non-compliance with the accreditation rules.
The Amendment Act also limits the sharing of information that could compromise safety in accessing CCS. For example, the details of the public transport a family member might use to attend a session must remain confidential.
Schedule 3: Case management and procedure
Removing Limitation on Application for Divorce
Previously, parties married less than 2 years seeking a divorce order had to file a certificate stating they had considered reconciliation with the assistance of a professional or seek leave from the court to apply for divorce. The Amendment Act removes this requirement.
Attending family dispute resolution before applying for a Part VII Order
In support of a Part VII (parenting) application, parties are required to file a certificate from an accredited dispute resolution practitioner confirming that one of the following applies:
- The parties have attended family dispute resolution
- One party has refused or failed to attend family dispute resolution
- The family dispute resolution practitioner considers that family dispute resolution is not appropriate in the circumstances.
However, a certificate is not required if one or more of these exemptions apply:
- There is urgency
- There has been child abuse and/or family violence by a party
- There is a risk of family violence by a party
- A delay in applying to the court could create a risk of child abuse
- A party is unable to participate effectively in family dispute resolution (for example due to location or incapacity)
- There are reasonable grounds to believe that a person who has allegedly contravened an order made in the last 12 months has behaved in a way that shows a serious disregard for their obligations under that order.
The Amendment Act gives courts the express power to reject a Part VII Application for filing if there is no certificate or applicable exemption.
Attendance at Divorce Proceedings
The Amendment Act makes changes to section 98A of the Family Law Act. The changes mean divorcing parties will have the same court attendance requirements regardless of whether:
- They file solely or jointly
- There are children of the marriage.
The court will be able to hear sole divorce applications without attendance at court even if there are children to the marriage under the age of 18 years.
Commonwealth Information Orders
The Family Law Act empowers the court to make Commonwealth Information Orders (CIOs), which compel Commonwealth departments or agencies to provide information concerning the location of a missing child. This includes any information about actual or threatened violence against the child, a parent, or another person the child lives with. This information can help the court make further orders for the recovery of a child or the service of a parenting application.
The Amendment Act clarifies that information related to violence must be provided even if a department or agency does not have location information, and that CIO obligations apply regardless of other laws that may prevent information disclosure. These amendments ensure that the court can access critical information about risk or actual violence to a child, even where there is no available information about the location of a child.
Protecting Sensitive Information
The Amendment Act empowers parties in the family law system, and others, to take steps to prevent access to evidence of certain confidential communications referred to a “protected confidences”. This recognises that while protected confidences evidence will sometimes be relevant in proceedings, disclosure of this evidence can be distressing and harmful to parties and children involved.
The protections relate to communications occurring where a person seeks treatment from:
- Health services (for both physical and/or psychological health)
- Specialist family violence services
- Specialist sexual violence services
To meet the definition of “protected confidence”, a communication must also have occurred in the course of, or in connection with, a professional relationship where there is an express or implied obligation of confidentiality.
When a party requests or subpoena records which include protected confidences, the court will be able to make a direction to protect this type of evidence where access would be likely to cause harm to a protected confider or a child involved in the proceedings. Such a direction would mean that the evidence is not to be adduced in proceedings, and/or that documents are not to be produced, inspected or copied in relation to certain disclosure requirements.
A court will decide whether the likely harm that would be caused to the confider, or a child in the proceedings, would outweigh the desirability of accessing the evidence. Types of harm that may be considered include:
- Physical harm
- Psychological harm or oppression
- Mental distress
- A detrimental effect on a party’s capacity to care for a child
- Financial harm.
The court must also consider the importance and probative value of the evidence, and the means available to the court to limit any possible harm. In parenting proceedings, the best interest of the child will be the court’s paramount consideration.
Written by
Stephen Rugendyke
Special Counsel
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