Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The Family Law Amendment Bill 2024 builds on the landmark reforms to Australia's family law system that were passed in 2023. Together these important reforms demonstrate the government's ongoing commitment to ensuring that the Australian family law system is safer, more accessible and simpler to use and delivers justice and equity for all Australian families.

Recent inquiries, including the 2019 Australian Law Reform Commission inquiry and the 2021 parliamentary joint select committee inquiry, have highlighted ongoing challenges in the family law system. It is complex and confusing. It fails to respond effectively to family violence.

This bill makes a range of amendments to the Family Law Act 1975 to address recommendations from these recent family law inquiries.

Where the family law reforms of 2023 focused principally on safety and clarity in parenting orders, the key amendments in this bill make resolving property and financial aspects of relationship breakdown safer, simpler and fairer for separating families.

Importantly, the bill implements improvements to the legal frameworks underpinning property settlements and spousal maintenance matters, including to specifically recognise the economic impact of family violence on the wealth and welfare of Australian families. The bill also makes the family law system safer and simpler by including amendments to enhance the operation of Children's Contact Services, clarifying important aspects of family law, safeguarding sensitive information in family law proceedings, including specific factors for decisions about family pets, and supporting the effective operation of the Federal Circuit and Family Court of Australia.

Codifying the property decision-making framework

The bill makes significant changes to parts VIII and part VIIIAB of the Family Law Act, which relate to property and financial proceedings for married and de facto couples, respectively. The effective operation of these parts of the Family Law Act is critical to ensuring financial arrangements following relationship breakdown are resolved safely, and on just and equitable terms.

The bill will codify the steps in the decision-making framework for property settlements, making the law clearer and more accessible for users of the Family Law Act. The Family Law Act does not currently identify the steps a court takes before making a property settlement order. This can be an obstacle to separating couples seeking to negotiate their own settlement, because they may not understand what the court considers in reaching an outcome. The law relating to property settlement must be clear and easy to understand for all users of the system.

The government has consulted with the public and with key family law stakeholders. In response, this bill will amend the Family Law Act to ensure that it operates in a way that assists separating couples to better understand and more easily and safely navigate the division of their property, both within and outside the court system.

Recognising the economic impact of family violence

The bill will ensure the economic impact of family violence on the wealth and welfare of Australian families is considered in property settlements where relevant. The government considers that all forms of family violence are unacceptable and is committed to addressing the economic consequences of family violence on separated families. Family violence is a critical and far too common issue in the community. Women are victims of family violence from a current of former partner at significantly higher rates than men. First Nations women, in particular, are disproportionately impacted by family violence. They are 33 times more likely to be hospitalised due to violence than non-Indigenous women and six times more likely to die as a result of family violence.

Women are also more likely to experience financial difficulties after separation and face a higher risk of poverty than men. This is particularly the case where there is family violence involved, with research indicating that victims of family violence struggle to achieve a fair division of property under the Family Law Act, and may suffer long-term financial disadvantage. For any children involved, in addition to the trauma of exposure to family violence, they may also then face financial insecurity and housing instability as a result of an inequitable outcome for their primary carer in a property settlement.

The Family Law Act does not currently identify family violence as a relevant matter for the court to consider in a property settlement. This has been left to common law principles in case law, which are difficult to find, understand and keep up with. There has been a high evidentiary threshold for establishing the relevance and impact of the violence, and limited evidence that the principles result in a meaningful adjustment to the distribution of property in a victim-survivor's favour.

The bill makes amendments to explicitly allow the court to consider the effect of family violence on the parties' ability to contribute to the property pool of a relationship, and to consider the effect of family violence on their future needs. This may be considered by the court along with a range of other factors to inform its decision about dividing property and finances. The effect of family violence can also be considered by the court in determining an application for spousal maintenance.

This bill sends a strong message to the community that property settlement outcomes should recognise the effect of family violence on individuals, and on the wealth and welfare of the family, where this is relevant. It makes clear to the family law courts, and parties negotiating outside of court, that the economic consequences of family violence are relevant to resolving property and financial aspects of relationship breakdown.

Codifying the duty of financial disclosure into the a ct

The bill will encourage separating couples to understand and comply with their financial disclosure obligations, supporting fair outcomes in property divisions by ensuring all relevant financial information is shared.

The bill will introduce a duty of disclosure for property and financial matters into the Family Law Act. While the duty currently exists in court rules, the Australian Law Reform Commission recommended that the duty to disclose be elevated from the rules and codified in the Family Law Act, to support the transparent disclosure of separating couples' financial circumstances.

This will encourage increased awareness of, and compliance with, the duty of disclosure and promote the early resolution of disputes by ensuring separated couples' financial information is disclosed at the earliest opportunity.

Creating a regulatory framework for Children's Contact Services

The bill will also amend the Family Law Act to provide a regulatory framework for Children's Contact Services, providing additional safety, reassurance and predictability for families as they navigate the sometimes uncertain time following separation. This measure will enable regulations to be made that encourage the provision of child-focused and high-quality contact services for children whose families are unable to safely manage contact arrangements on their own.

Less adversarial trial in property and other non-child-related proceedings

The bill will make the less adversarial trial approach available in property and other non-child-related proceedings. The less adversarial trial enables the court to actively manage the conduct of the proceedings, including directing how and on what issues evidence is brought forward and dealt with. Extending this beyond child-focused proceedings will support parties to raise family violence risks in property and other proceedings, ensuring they are safe and these issues are managed effectively throughout the proceedings. It will also support those seeking to raise the economic effect of family violence as a factor relevant to determining their property or spousal maintenance matter to bring forward evidence of family violence and its effects.

Pets

Pets have an important place in many Australian families.

It is a terrible reality that pets are too often used and abused in cycles of family violence.

The bill proposes amendments that will apply particular considerations to pets—defined as 'companion animals'—in determining the ownership of the pet as part of a property settlement. This will allow a court to make orders giving ownership of a pet to one party following a relationship breakdown. In making such an order, the court will be able to consider factors such as any history of family violence during the relationship, the extent to which each party has cared for the animal, any history of cruelty to the pet by a party, and the relationships of a party or a child with the pet. This will help recognise pets as a unique type of property that deserves special considerations.

Protected c onfidences

The bill will provide the courts with the ability to prevent records and other evidence generated from a child or party's engagement with health and specialist domestic and family violence services from being viewed by the other party or used as evidence, where the harm in doing so outweighs the need for the evidence.

While these records will often contain information relevant to proceedings, the experience of having private medical records or counselling notes made available to the other party is traumatic and distressing for many litigants. Seeking to have sensitive information disclosed and adduced in family law proceedings is also a method that can be employed by perpetrators to exploit legal systems to continue their abuse of an ex-partner.

Providing a safeguard against unnecessary access to this sensitive information is critical to reducing harm to families and children and to ensuring that people can feel safe to engage with therapeutic and support services. This measure advances the efforts made in this bill to combat family violence and supports families to safely access the family law system.

Amendments that will simplify and clarify the Family Law Act

Finally, the bill makes a range of amendments that will clarify and simplify how the Family Law Act will operate. A consistent theme throughout the reforms of this government is to aid usability of the Family Law Act for family law system users, including parties, unrepresented litigants, legal advisers and the courts.

These measures continue that theme, and include:

These important clarifications implement a range of Australian Law Reform Commission and joint standing committee recommendations and respond to feedback from the family law sector.

Finally, the bill provides for a statutory review of the reforms made to the Family Law Act three years after these amendments commence. This is important to ensure the reforms operate effectively, and prioritise the safe and fair resolution of family law property matters.

Conclusion

In closing, the bill is a further significant step towards a safer, more accessible, just and fair, family law system, especially for separating families seeking to divide their property or resolve their finances. It builds on the government's landmark reforms of 2023, which primarily focused on ensuring the safety and best interests of children in parenting matters. The government has listened, and responded, to broad-ranging feedback from the public, from users of the family law system, and from the detailed reviews into the family law system. In proposing these measures, the government thanks all who have contributed to relevant inquiries and the consultation process on this bill.

This bill is a clear demonstration that the government recognises the prevalence of family violence and remains committed to ensuring that the family law system is safe, just, equitable and easy to access for Australian families.I commend the bill to the House.

Debate adjourned.