The government has introduced a number of key changes to the family law field in the new Family Law Amendment Bill 2024. This Bill has not yet passed, but if introduced the changes below may be enacted.
Perhaps the most significant change is in the introduction of financial abuse as family violence. The Bill provides detailed examples of behaviour that may amount to economic or financial abuse. Such behaviour could include: unreasonably denying a family member financial autonomy (including by controlling superannuation, or sabotaging employment potential); unreasonably withholding financial support required for reasonable living expenses (including the consistent withholding of child support payments); coercing a person to give or seek money as a dowry; or hiding or falsely denying things done or agreed to in connection with dowry.
The Bill now makes it mandatory for the courts to consider any family violence impact on contributions. The courts will be required to consider the effect of any family violence which one party has subjected (that is, committed direct violence towards) or exposed (that is, committed violence on other persons such as children in the family) the other party to. The proposed provisions will require courts to consider (where relevant) how any violence has impacted a person’s ability to make financial, non-financial and/or family welfare contributions.
The Bill also contains proposed sub-sections which set out additional matters which are relevant for courts to consider when assessing current and future circumstances. Current factors the court is directed to consider when assessing current and future needs include a person’s age, health, income status and earning capacity and whether any children are required to be cared for.
Four new factors are proposed in the Bill
Firstly, the courts will be permitted to take into account the effect of family violence on current and future circumstances of impacted people. This could include the costs for ongoing counselling due to family violence.
The second factor is the effect of intentional or reckless material wastage. This could include, for example, allowing the court to consider one party’s excessive gambling. Courts could consider wastage as a factor where it would be unjust for any detriment or diminution to be shared equally by both parties.
The third new factor allows courts to consider liabilities incurred by either party. Liabilities could include, for example, an unsecured loan, a gambling debt, or a taxation liability. Including this factor will allow the court to undertake detailed questioning of who obtained the liabilities, when they were obtained and whether both parties consented to obtaining them.
Finally, courts will be able to explicitly consider any relevant care and housing needs for children under 18 years of age. The courts are already required to consider the extent to which parents care for children, but the new provision goes further by explicitly requiring the court to consider parental needs to provide housing for children.
Another area of change is a set of new provisions, including a new definition of “companion animals” (family pets). This definition describes an animal kept by the parties (either collectively or individually) primarily for the purpose of companionship, with some exceptions of animals not considered companions. Relying on this definition, the new provisions provide clarity for how family pets are treated in property proceedings.
While previously courts could award joint custody of pets in family law proceedings, the new amendments limit courts to make one of only two orders regarding pets: an order that one person exclusively own the pet, or an order that the pet be sold.
In considering making an order, the new provisions provide the court with factors to consider where relevant. These factors include how the pet was acquired, the general maintenance arrangements for the pet, any family violence either party has subjected the pet to, and a demonstrated ability of either party to take care of the pet in the future.
Written by
Stephen Rugendyke
Special Counsel
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