Sina Taghdir – Taft Lawyers Melbourne

Last Update of Family Law in Australia

The most recent updates to the Family Law Act in Australia were enacted through the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023.

These changes, which come into effect on May 6, 2024, represent significant reforms aimed at simplifying the family law system, enhancing child safety, and improving information sharing between relevant agencies.

Key updates include the removal of the presumption of equal shared parental responsibility, which has often led to misunderstandings about parents’ rights. Now, all decisions about parenting arrangements will be made based solely on the best interests of the child, emphasizing safety over shared parenting time. Additionally, there is a new, simplified list of considerations for determining the best interests of the child, making it easier for courts to focus on what will best ensure a child’s welfare and safety.

The changes also implement a robust framework for information sharing between the courts, child protection agencies, and police, which will help better identify and manage risks of family violence, child abuse, or neglect during proceedings. Independent Children’s Lawyers (ICLs) are now required to meet with children to understand their views, unless certain exceptions apply.

These reforms aim to make family law proceedings more accessible and protective, particularly for children, while reducing the risk of harmful or coercive arrangements. The full effect of these reforms is expected to transform how family disputes are managed across Australia, including Victoria, by making the legal processes clearer and more focused on family safety and well-being.

Source: Federal Circuit & Family Court of Australia

Is Property Settlement after Divorce Complicated?

The process of property settlement after divorce in Australia can be a relatively complex issue due to various factors that must be considered and the legal framework involved.

The Family Law Act 1975 governs how property settlements are handled, but each case is unique, depending on the nature of the assets, contributions of both parties, and future needs. The process is not simply about dividing property equally but rather ensuring a fair and equitable distribution based on a detailed analysis of both parties’ financial and non-financial contributions.

The complexity arises from the need to identify and value all assets and liabilities, which can include property, superannuation, businesses, investments, debts, and personal possessions. Financial and legal intricacies can add to the difficulty, especially when it comes to accurately assessing superannuation or valuing business interests. Disputes are common, particularly in cases where the assets are substantial or the financial circumstances are intricate.

Future needs are another layer of complexity in property settlement, as factors such as age, health, earning capacity, and the care of children must be considered. The court assesses how these factors impact each party’s ability to support themselves and adjusts the settlement accordingly, which requires a detailed understanding of each person’s situation.

Finally, achieving an agreement can be challenging, and if the parties cannot reach a settlement through negotiation or mediation, they may need to go to court, which can be time-consuming and costly. Seeking expert legal advice is crucial to navigate these challenges and ensure a fair outcome.

Does the Law Protect People against Domestic Violence?

Australia has robust laws to protect individuals from domestic violence, governed by both federal and state-level legislation. The primary legal framework includes protection orders, criminal laws, and family law provisions to address and prevent further violence.

1. Protection Orders

In each state and territory, individuals at risk can apply for protection or intervention orders. In Victoria, these are called Family Violence Intervention Orders (FVIOs). An FVIO can prohibit the offender from approaching, contacting, or being near the victim, and in some cases, it may remove the offender from shared premises. These orders are enforceable by the police, and breaches are treated as serious criminal offenses.

2. Criminal Laws

Domestic violence is a criminal offense, and the law provides penalties for acts like physical assault, sexual violence, stalking, or making threats. In severe cases, offenders may be charged and prosecuted under criminal law. The police have the authority to arrest and charge perpetrators, and they can also issue temporary safety notices, which provide immediate protection for victims until a court hearing can take place.

3. Family Law Provisions

The Family Law Act 1975 considers the impact of domestic violence when making decisions related to child custody and property settlements. The law prioritizes the safety of children and non-offending parents. Courts can impose restrictions or change parenting arrangements if there is a risk of harm due to family violence. Family courts can also issue injunctions to protect victims and their children from abusive partners.

4. Support Services and Resources

In addition to legal protections, there are various support services, including hotlines, counseling, and emergency housing. Organizations like 1800RESPECT provide confidential counseling and help victims access legal and social resources. Legal aid services also assist victims in understanding their rights and navigating the court process.

These measures ensure a comprehensive approach to tackling domestic violence, combining legal, social, and psychological support to safeguard victims and hold perpetrators accountable.

What is the Divorce rate in Australia?

In Australia, the overall divorce rate has shown fluctuations over recent years, but there has been a long-term decline since the 1970s. As of 2023, the crude divorce rate stood at 2.3 divorces per 1,000 people aged over 16, down slightly from 2.4 in 2022. The median duration of marriages before divorce was 13 years, reflecting that couples tend to separate and initiate divorce after more than a decade of being together. Interestingly, this statistic has gradually increased, highlighting that marriages are lasting slightly longer before breaking down.

Victoria, one of the most populous states, contributes significantly to the national divorce numbers. In recent data, the state reported trends in line with national figures, though local variations occur. For instance, during the peak of the COVID-19 pandemic, marriage and divorce dynamics were impacted, with many relationships experiencing strain due to lockdowns and financial pressures. The easing of restrictions saw adjustments in both marriage and divorce statistics, with a notable spike in divorce applications following the pandemic lockdowns.

The factors influencing divorce rates include economic stress, infidelity, communication issues, and changes in societal norms. Additionally, second marriages have a higher probability of ending in divorce, with 60% of such marriages dissolving, often due to the complexities of blended families and financial pressures from previous relationships. This trend reflects the unique challenges that remarried couples face compared to first marriages.

Overall, while divorce rates have decreased compared to historical highs, they continue to be a significant part of family dynamics in Australia. The impact of these divorces on children has also been analyzed, with a decreasing percentage of divorces involving minors. Older age at marriage and higher median ages at divorce indicate a societal shift toward later-life relationship dissolutions, influenced by changing life patterns and priorities.

Source: Australian Bureau of Statistics