Overview
The Family Law Amendment Act 2024 (Cth) (the Amendment Act) makes changes to the Family Law Act 1975 (Family Law Act) for financial cases, including property settlement and spousal maintenance claims. The amendments to provisions related to property and financial matters are also complimented by further changes to case management and information sharing powers in the Commonwealth of Australia. All these changes are coming into force on 10 June 2025.
The amendments to the Family Law Act focus on the financial and property aspects of relationship breakdown, with particular recognition of the effects of family violence and abuse, and now considering pets as ‘companion animals’ rather than just part of the property pool.
The changes also effect other areas of the Family Law Act, including:
Children’s contact services;
Case management of divorces and family dispute resolution (FDR); and
Protecting sensitive information.
The information below summarises how the amendments to the Family Law Act 1975 will applied. This does not constitute legal advice for the reader. If you are seeking legal advice, it is recommended you contact our office to arrange an appointment.
Schedule 1: Property
Family Violence definition
The Amendment Act was designed to clearly identify and recognise economic or financial abuse as family violence within section 4AB of the Family Law Act.
The Amendment Act:
Shifts the existing examples of economic or financial abuse as defined in section 4AB into a stand-alone provision, with the intention of giving such abuse more recognition in financial proceedings;
Expands the definition of an existing example of unreasonably denying financial autonomy to a spouse or de facto partner; and
Includes new examples of dowry abuse, which is becoming an increasing issue in our multicultural community.
The Framework of the Amendment Act
The Amendment Act codifies aspects of the case law to define the process for determining a property settlement. It does not change the usual 4-step process applied to property settlement cases as explained in the High Court authority of Stanford v Stanford [2012] HCA 52.
The Federal Circuit and Family Court of Australia must consider whether it is just and equitable to make any order adjusting the parties’ property interests. There is no right to have property interests altered or adjusted simply because you were in a relationship with the purpose, whether that be a marriage or de facto relationship. The Court is not required to make an order, and will only do so if satisfied that it would be just and equitable, which is a discretionary decision based on consideration of several factors which differ from case-to-case.
Determining what will be a just and equitable division for property division between parties to a former marriage or de facto relationship, includes the following considerations:
1. Identifying each party’s legal and equitable rights and interests in any property, and their liabilities.
2. Assessing 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 those contributions.
3. Assessing the parties’ current and future circumstances, and any specific needs. At this step, the court may depart from its assessment of the parties’ contributions-based entitlements and make an adjustment in favour of one party to account for their current and future circumstances, if it would be just and equitable to do so.
4. Making a determination on 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 sequence of the decision‑making steps above reflects how the factors are likely to be applied in most property matters. However, family law courts can approach these steps in any order to achieve a just and equitable outcome.
New considerations in property proceedings
Contributions
The Amendment Act inserts family violence into the list that the Federal Circuit and Family Court of Australia 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. This was already recognised in the known cases of Kennon v Kennon [1997] FamCA 27, Benson & Drury [2020] FamCAFC, Baranski & Baranski [2012] FamCAFC 18, Damian & Damian [2012] Fam CA 535, and Jarvis & Seymour [2016] FCCA 1676
Adjustments for Current and Future Circumstances
The Amendment Act introduces several new factors the Court will consider when assessing the current and future circumstances of the parties in financial disputes. The factors that existed prior to the amendment remain in this new of factors, and will operate alongside the following new factors:
a. 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 legislated factor permits a broader consideration of family violence than previously provided in case law as mentioned above.
b. Wastage: Where a party intentionally or recklessly caused any material wastage of property or financial resources of the relationship (such as gambling), this factor permits the Court to consider the effect of that wastage in assessing the parties’ current and future circumstances. This factor has been recognised for years in the pursuant to the known case of Kowaliw & Kowaliw [1981] FamCa 70, which has bene recently re-affirmed with approval in Anaya & Anaya [2019] FCCA 1048.
c. Liabilities: Where the parties incurred any liabilities, either during the relationship or post-separation, this factor permits the Court to consider the nature of the liabilities, the circumstances relating to them, how those liabilities came to be, and the impact of those liabilities on the financial future of the parties.
d. Housing needs: This factor broadens 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. This will likely become relevant where a party is prohibited from residing in the family home after separation, or needs a home to fulfil their obligations pursuant to parenting orders.
Spousal Maintenance
The features mentioned above for the assessment of current and future needs are relevant to a determination as to whether a party is entitled to receive 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. Consideration of issues of family violence and abuse, could become relevant in determining whether lump sum or periodic spousal maintenance is paid, and how the payments are to be made. The Court will need to consider the economic effect of family violence to which one party has subjected or exposed the other party, and how ongoing maintenance orders may affect the aggrieved party.
Pets are now ‘Companion Animals’
Under the Family Law Act, animals owned by parties to the relationship are treated as property. Disputes regarding ownership of pets following a relationship breakdown could only be resolved by viewing pets as ‘property’, which obviously does not account for emotional attachment and support. Pets cannot be treated as children for the purposes of parenting orders.
The Amendment Act has sought to redress this issue and introduced 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.
Under the Amendment Act, the Court is given power to order that one party have sole ownership of a companion animal, or transfer ownership to another person with their consent, or that it be sold. Unfortunately, the Court cannot make orders for shared ownership or shared care of companion animals.
What is 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.
An animal that is kept for more than one purpose would be excluded from the definition of a companion animal. Animals that are not companion animals can be dealt with as any other type of property interest.
How does the Court decide who keeps the companion animal?
The Amendment Act inserts a list of factors the Court must consider for orders dealing with a companion animal. This includes considering:
a) any history of actual or threatened abuse towards a companion animal;
b) any attachment by a party or a child of the relationship to the companion animal; and
c) the ability of each party to care for the companion animal in the future.
The Courts have broad discretion to assess and weigh the factors in the list.
Less adversarial approach
The Amendment Act expressly sets out the Court’s powers to more actively manage any type of family law proceeding through a less adversarial approach. The aim is to reduce intimidation and stress of court processes for families.
Amongst other approaches, the less adversarial approach adopted by the Federal Circuit and Family Court of Australia is the use of technology to facilitate remote attendance where there are allegations of family violence, or allowing evidence of the occurrence and effect of family violence which may not otherwise be admissible.
The approach also suspends portions 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 Part VII proceedings (about parenting) and in property or financial proceedings where there were concurrent or past proceedings involving parenting matters, and 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 resolved.
The Amendment Act establishes a new obligation on legal practitioners and family dispute resolution practitioners to make parties aware of their duty of disclosure and encourage compliance by informing them about the duty and the possible consequences of non‑compliance with the duty.
Consequences of non-compliance with the duty of disclosure can be significant and include:
a. Punishment for contempt of court with a fine or imprisonment;
b. Costs orders against a party;
c. The court taking the non-compliance into account in determining what orders (if any) 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.
Arbitration is a process (other than the judicial process) in which parties to a financial dispute present arguments and evidence to an independent arbitrator, who makes a determination to resolve the dispute. Arbitrators are experienced legal practitioners who are specially trained and accredited in arbitration. Arbitrators must be accredited by Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) to be able to conduct family law arbitrations.
Under the Amendment Act, an arbitrator or party can apply to the Federal Circuit and Family Court of Australia for orders about the conduct of the arbitration. This includes terminating an arbitration if the court is satisfied that because of a change in circumstances, it is no longer appropriate to continue. For example, there may be safety concerns that impact a party’s ability to safely and effectively participate in the arbitration.
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). These rules are to be established in regulations.
The regulations have been completed, courts will only be able to refer families to accredited CCS. Penalties, including strict liability offences, can apply for a CCS’s non-compliance with the accreditation rules. The penalties for non-compliance are 50 penalty units for individuals and 250 units for corporations.
The Amendment Act also limits the sharing of information that could compromise safety in accessing CCS. For example, details of the public transport a family member might use to attend a session must remain confidential. This is particularly important for the protection of victims of family violence and abuse who are bound by court orders to facilitate professionally supervised contact between their children and the other parent.
Schedule 3: Case management and procedure
Removing limitation on application for divorce
In the past, couples married for less than 2 years who wanted a divorce had to submit a certificate confirming they had explored reconciliation with professional help, or they needed to obtain court permission to file for divorce. The Amendment Act eliminates this requirement.
Regardless of the marriage's duration, anyone requesting a divorce order must follow the procedures outlined in Part VI of the Family Law Act. Couples are required to be separated for at least 12 months and one day before they can file for divorce.
Attending family dispute resolution before applying for Part VII order
In support of a Part VII (parenting) application, parties are required to file a certificate from an accredited family dispute resolution practitioner confirming that one of the following applies:
a. The parties have attended family dispute resolution.
b. One party has refused or failed to attend family dispute resolution.
c. The family dispute resolution practitioner considers that family dispute resolution is not appropriate in the circumstances.
This is outlined in Section 60I of the Family Law Act.
However, a certificate is not required if one or more of these exemptions apply:
a. There is urgency.
b. There has been child abuse and/or family violence by a party.
c. There is a risk of family violence by a party.
d. A delay in applying to the court could create a risk of child abuse.
e. A party is unable to participate effectively in family dispute resolution (for example, due to location or incapacity).
f. 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 (parenting) application for filing if there is no certificate or applicable exemption. If an application is rejected for non-compliance with section 60I, persons who would have been parties to proceedings can seek a review of a decision made by a delegate exercising the new power.
Attendance at divorce proceedings
The Amendment Act modifies section 98A of the Family Law Act. These modifications ensure that divorcing parties face the same court attendance requirements whether they file individually or together, and regardless of whether they have children from the marriage.
The Court can now handle sole divorce applications without requiring court attendance, even if there are children under 18 from the marriage.
This provision is already applicable to joint applicants and sole applicants without children from the marriage.
Commonwealth Information Orders
The Family Law Act authorizes courts to issue Commonwealth information orders (CIOs), requiring Commonwealth departments or agencies to supply details about the whereabouts of a missing child. This encompasses information on actual or threatened violence against the child, a parent, or another individual residing with the child. Such information aids the court in making further orders for a child's recovery or the processing of a parenting application.
The Amendment Act specifies that even without location information, departments or agencies must provide details related to violence, and CIO obligations are applicable regardless of other laws that might restrict information disclosure. These amendments ensure the court can obtain crucial information regarding risk or actual violence to a child, even when the child's location is unknown.
To guarantee the Court's access to critical risk-related information concerning a child or their family member, the Amendment Act broadens the scope of individuals about whom departments or agencies may need to provide violence-related information if ordered under a CIO. CIOs are no longer confined to the child, a parent, or someone the child resides with. The expansion includes the child and their relatives, such as parents, siblings, grandparents, uncles, aunts, nieces, nephews, cousins, step-relatives, foster relatives, and any other person deemed relevant by the court with a connection to the child (for instance, someone who lives with or cares for the child).
State Courts to make parenting orders
The Amendment Act elucidates the functioning of current provisions that allow State or Territory Courts to be granted jurisdiction to issue family law parenting orders. It explicitly authorizes a state or territory court designated under section 69GA to exercise the same jurisdiction under Part VII of the Family Law Act as if those proceedings were conducted in a state or territory court of summary jurisdiction.
Protecting Sensitive Information
The Amendment Act allows parties within the family law system, along with others, to take measures to restrict access to evidence of specific confidential communications known as ‘protected confidences’. This acknowledges that although evidence from protected confidences may occasionally be pertinent in proceedings, revealing this evidence can cause distress and harm to the parties and children involved.
The protections relate to communications occurring where a person seeks treatment or support from:
a. health services (where ’health’ refers to both psychological and physical health)
b. specialist family violence services
c. specialist sexual violence services.
For a communication to qualify as a 'protected confidence', it must originate during or be related to a professional relationship that includes an explicit or implicit duty of confidentiality.
When a party seeks or subpoenas records containing protected confidences, the court can issue a directive to safeguard this kind of evidence if access might harm a protected confider or a child involved in the case. This directive would prevent the evidence from being presented in proceedings and/or restrict the production, inspection, or copying of documents in relation to specific disclosure requirements, including subpoenas.
An application for a direction can be made by:
a. a confider, confidant, litigation guardian or person in possession or control of a relevant document (such as a health service or health professional)
b. in the case of a child, an independent children’s lawyer (ICL) or other person with certain relationships to a child (such as those who have care of a child, or have or propose to have parental responsibility).
A Court may also issue a direction on its own accord.
A Court will determine if the potential harm to the confider or a child involved in the proceedings outweighs the benefits of obtaining the evidence.
Examples of the types of harm that may be considered by the court include:
a. physical harm
b. psychological harm or oppression
c. mental distress
d. a detrimental effect on the other party’s capacity to care for a child
e. financial harm.
The Court must evaluate both the significance and the evidentiary value of the evidence, as well as the methods the court can use to mitigate any potential harm. In parenting cases, the child's best interests will be the court's primary concern.
Schedule 4: General provisions
Costs orders
The Amendment Act repeals and replaces the costs provisions in the Family Law Act to provide greater clarity about when and how the court can make costs orders in family law matters. It also clarifies the circumstances when parties could be ordered to pay the costs of an ICL in a parenting proceeding. The costs provision has also been moved and renumbered in the Act.
The amendments:
1. Incorporate provisions that were solely found in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and Family Court Rules 2021 (WA) into the Family Law Act, including rules relating to when a party to proceedings may make an application for costs, how costs will be calculated, and the types of costs orders that a court may order;
2. Clarify that recipients of assistance under the Family Violence and Cross-examination of Parties Scheme may be ordered to pay for costs of the ICL unless an existing financial hardship provision applies;
3. Make clear that a costs order can be made against a party who previously received legal aid, but is no longer eligible due to a change in financial circumstances.
Rule-making power for a Family Court of a State
The Amendment Act grants a new authority to a State's Family Court to establish its own court rules when handling federal family law cases. As it stands, the Family Court of Western Australia (FCWA) is the sole State Family Court recognized under section 41 of the Family Law Act. This modification allows the FCWA to create and modify its court rules more efficiently and flexibly, without needing consent from the judges of the Federal Circuit and Family Court of Australia (Division 1).
Review of approved methods and factors for valuing superannuation interests
The Amendment Act introduces the authority to create regulations mandating superannuation trustees to evaluate the actuarial formulas (referred to as the approved methods and factors) used for valuing superannuation interests in family law cases. It also incorporates transitional arrangements for the Family Law (Superannuation) Regulations 2001, granting the Minister the power to approve 'transition factors' for determining a non-member spouse’s entitlement following a family law superannuation splitting order or agreement.
Separation declaration requirements
The Amendment Act eliminates specific separation declaration requirements for parties wishing to divide their superannuation by agreement when a member's superannuation interests surpass the low rate cap established under the Income Tax Assessment Act 1997. This change acknowledges that the low rate cap will no longer be pertinent for tax purposes starting from 1 July 2024.
Schedule 5: Review of amendments
A review of the Amendment Act's operation will be conducted to confirm that the new provisions are functioning as intended. This review should begin promptly after 10 June 2028 and be finalized within 12 months. A report detailing the review will be presented to Parliament.
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