Family Law Amendment Bill 2024

The Family Law Amendment Bill 2024 was first released to the public for comment as the Exposure Draft: Family Law Amendment Bill (No. 2) 2023 in September 2023 and 22 August 2024 marked a significant step in the movement toward the Bill becoming legislation with the First Reading before the House of Representatives and the passing of a motion for the Bill to go to a second reading.

Next Steps

The First Reading and move for a Second Reading is the first significant step in legislative process and marks the start of the consideration period for the House of Representatives.

There will be a second reading and debate prior to the Bill being considered, and amendments made, if necessary. It is expected that the Family Law Amendment Bill 2024 will be referred to the Federation Chambers prior to passing through the House. Once an agreement is reached on the second reading there is a third and final reading in the House of Representatives before the Bill is referred to the Senate.

The Senate follows a similar path of 2 readings prior to a debate and a third reading. Where amendments are made by the Senate, the House of Representatives is required to agree to the amendments after which a Bill is passed and referred for Royal Assent. Upon receiving Royal Assent the Bill becomes legislation and the mechanisms for commencement are triggered.

What is the focus of the Family Law Amendment Bill 2024

The focus of this amendment Bill as described in the Explanatory Memorandum is to “make the family law system safer and simpler for separating couples to navigate, and ensure the property and financial aspects of relationship breakdown are resolved safely and fairly”.

With a general focus on property matters the Bill also includes amendments to incorporate the accreditation program for Child Contact centres and aims to further address the recommendations of the Joint Select Committee on Australia’s Family Law System Inquiry which highlighted the issues in the family law system in particular, “extensive court delays, complex and confusing legislation and inadequate protection for people at risk of family violence”.

Is the 2024 draft different to the 2023 draft

On 22 November 2023 FLENA held a panel discussion for the exposure draft for the Bill and we are pleased to say that the majority of amendments remain unchanged. View that panel discussion here.

One notable deletion from the 2023 exposure draft is the removal of the previously proposed s114UC “Costs order against lawyer”, however it is important to note that it is still within the discretion of the Court to make a cost order against a practitioner.

Overview of the proposed changes to watch

1. 1. The codification of the 4-Step process within s.79 and s.90SM , providing a clear pathway for users of the Court and greater clarity as to the application of the law.

    

   Between the exposure draft and the Bill put before the House there has been additional provisions added to the s79(5) considerations for wastage and liabilities incurred by one or more parties and the circumstances of such liability being incurred. We anticipate that this will see more arguments about the actions of parties during relationships where such action have affected the assets available for distribution in the matrimonial estate.

    

   2. One of the most significant changes is the codification of the requirement for the Court to consider family violence in the property matters under the proposed s79(4)(ca) “the effect of any family violence, to which one party to the marriage has been subjected or exposed the other party, on the ability of a party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c)” and proposed s79(5)(a) “the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the current and future circumstances of the other party, including on any of the matters mentioned elsewhere in this subsection”.

    

   Similar amendments are made within s.90SM and, as discussed with the FLENA panel,

   these amendments go further than the current position as established in Kennons.

    

   3. The removal of the words “and control” when discussing the care arrangements for children – a change which is made in line with current social expectations and an aversion to the use of possessive wording in a parenting context.

    

   4. The inclusion of a definition and the manner in which companion animals are dealt with in a property settlement.

    

   This was a new amendment from the original proposed Bill released for community comment in September 2022 and deals with animals that are not assistance animals or animals kept for business, agriculture or laboratory testing.

    

   In line with the previous case law, companion animals are defined as property and subject to Part VIII and Part VIIIAB of the Act.

    

   The amendments have added consideration for determining ownership of companion animals including extent of care, history or cruelty and attachment to a party/child of the relationship.

    

   5. The centralising of the principles for conducting matters to 102NE to enhance the control of courts to actively manage the conduct of all family law matters.

    

   6. The codification of the duty of disclosure, including the duty as it applies prior to the commencement of proceedings and the obligations on practitioners to provide advice as to the duty and consequences for non-disclosure.

    

   7. The addition of protected confidant principles to safeguard against harmful disclosure and adducing of evidence arising from communication made in the course of professional confidential relationships.

    

   These sections provide the Court with discretion to limit access to professional service records, such as health services, where such disclosure is considered harmful to the confiding party.

    

   8. In light of the move for Child Contact Centres to be regulated the Bill has proposed amendments to provide a regulatory framework including penalties for service providers who do not become accredited. The framework also provides further detail in respect to disclosure of information from the service.

    

   9. The inclusion of a legislative framework to require superannuation trustees to review their actuarial formulas used to value superannuation interest so as to ensure that the Court has access to accurate and reasonable valuations of superannuation interests.

    

   10. Amendments to s60I to provide greater discretion to the Court in respect to exemptions and the ability for a decision to be reviewed where the parties do not agree with the exercise of that discretion.

    

   11. The removal of the attendance requirement for undefended divorce proceedings where there are minor children, reducing the costs of parties.

    

   12. The expansion of Commonwealth Information Orders to proactively require disclosure in relation to family violence.

    

   Will the Bill change further

   There is a strong possibility that the Bill will see several more amendments prior to becoming legislation and we will continue to keep you updated as to the progress.