Di Simpson from DDCS Lawyers has welcomed proposed reforms to the Family Law Act. Photo: Region Media.
Changes are afoot to make the law simpler, safer and fairer for separating couples when dividing property.
Proposed reforms to the Family Law Act would recognise the economic impact of family violence and consider this when determining property settlement cases.
Family Law specialist, DDCS Lawyers partner and Chair of the Family Law Section Executive of the Law Council of Australia Di Simpson, said while reform was “really important”, it would be a “big challenge” to get it right.
“This is a big deal and fits with this government’s focus on law reform that better protects women and children against family violence,” she said.
“We say as a society that family violence is terrible and that the prevalence of family violence is obscene and it’s a great challenge for our society, yet in the family law sphere we are required to tell our clients that family violence isn’t usually relevant when it comes to dividing property.
“These changes will make it easier for victims of family violence to place those issues and experiences before the court and have them taken into account in a property settlement case.
“It will ensure there is a proper adjustment to the victim in recognition of what they have had to endure to continue making their contribution to the relationship.”
Inquiries into the family law system by the Australian Law Reform Commission (ALRC) and the Joint Select Committee (JSC) have identified the need for a clear and easily understood framework in the Family Law Act setting out how property settlements are determined.
The JSC also recommended that the economic impact of family violence on property settlements be recognised in the Family Law Act.
Ms Simpson said that while she welcomed the proposed new legislation, the government “needs to get it right”.
“At the moment, these cases are really, really hard to run because people have to be prepared to detail what’s gone on in their family in terms of violence and that can be highly contested, so you can end up with a long, expensive and stressful court case,” she explained.
“The new laws must balance how we address family violence in financial cases and ensure a fair hearing for each party and make sure that the process is safe for the victim and the children.”
Ms Simpson said the reforms had the potential to open a can of worms for the courts that could be “crushed by the enormous rate” of financial cases where family violence is alleged.
“Even with the best intentions, these changes might lead to a tsunami of cases where we need to pay more attention to family violence. It will mean property settlement cases will become bigger, harder and take more time.
“Obviously, it is extraordinarily important, particularly in cases where children are involved, that we must protect the victims from risk, so we need to craft a piece of legislation that is easy to understand and doesn’t take up loads of extra time, money and place additional stress on the families involved.
“This is such a complicated issue, and it’s going to be a big challenge to get right.”
Ms Simpson said the laws could eventually act as a deterrent for perpetrators of family violence because it would mean there was a financial consequence for violent conduct – in the criminal law system, they might go to jail, but in the family law system, they might lose a relationship with their children and soon they could also end up with less property.
She said family violence of some kind was currently alleged in 80 per cent of family law cases that ended up in court, but the pathway to have the alleged violence taken into account in property cases was presently complex and technical.
“The reality is that in most cases before the family law courts, family violence is alleged. It’s a pretty big number,” she added.
“The people who come to see us aren’t the ones that work out their settlement over coffee while their children are playing soccer. They have these complex issues in their case, and family violence is raised in a great majority of them.
“It’s a really grim reality that family violence is everywhere, and it is appropriate to try to update the law to make it easier for victims of family violence to tell their stories and seek a further adjustment of property.”
The new legislation would simplify key principles for property settlement in the Family Law Act to assist separating parties, legal representatives and the courts.
The proposal contains a range of measures, including enhancing the court’s discretion to manage evidence where family violence is alleged or present between separating couples and inserting a specific duty of disclosure in property and financial matters in the Family Law Act.
The changes would clarify the circumstances in which a court can order a party to contribute towards the cost of an Independent Children’s Lawyer. They would also strengthen Commonwealth Information Orders to ensure the court has access to critical information about the risk of violence to a child and provide a framework for the future regulation of Children’s Contact Services.
The reforms follow several improvements to the family law system that are already underway.
Canberra-based DDCS Lawyers specialises in all aspects of family law, wills, estates and business succession.
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