Change is rife in the world of family law in the wake of potential amendments to the Family Law Act 1975 and pending restructures to the Court system.
The Australian Law Reform Commission (ALRC) has made a number of recommendations in different areas of family law, which seem to have the common purpose of establishing a more prescriptive system with less “grey areas”. Final recommendations are due to be submitted by the ALRC by 31 March 2019. Some of the recommendations made so far include the following:
There has been a push to include specific provisions in the Family Law Act to make it clearer when a Court may vary, revive or discharge parenting orders.
Historically, there has been some uncertainty in this area as it has been governed by the rather broad principle in the case of Rice v Asplud (1979), which says that there needs to be a “significant change in circumstances” to warrant such variation, revival or discharge.
There may be a requirement to take into account the effect of family violence on contributions made throughout a relationship. In the past, this has only been allowed in extreme circumstances, however the need to negate the imbalance of power caused by family violence is now being recognised.
It is anticipated that the challenge will lie in balancing the need to protect victims of family violence from being “re-traumatised” whilst going through the family law process, against ensuring that they are able to participate fully in that process to achieve the fairest outcome possible in terms of a property settlement.
- Financial Agreements
It has been suggested that amendments be made to the Family Law Act to increase certainty as to when Financial Agreements are binding; broaden the scope to be able to set Financial Agreements aside; and introduce the ability to make Court- approved Financial Agreements.
If adopted, this will be welcome change as this is an area that has been notoriously vague in the past.
Understandably, it may seem overwhelming for people trying to navigate the Family Law system during this transition phase on top of dealing with the challenges that come with going through a separation. If you find yourself in this situation, or generally require assistance with your Family Law needs, the Family Law team at McLaughlins Lawyers are here to guide you through the process.
Author: Shona Sahay
Director: Sophie Pearson
Date: 21 January 2019