On this page you find a clear explanation of several of the core amendments, including those specific to:
- The divorce process
- Exemptions from Mediations/Family Dispute Resolution
- Evidence: Sensitive information & increased confidentiality
- Costs Orders (when one party is required to pay the other parties legal costs)
- What happens if someone dies during Family Law proceedings
- Clarity about the financial disclosure requirement timeline
- Pets/animals in the property settlement process
- Family Violence considerations in determining financial settlement
Perhaps the most significant of all of the changes in legislation are in relation to family violence and pets being considered when determining the outcome of a financial (property) settlement.
Divorce Applications
There are two specific changes to the processes in divorce.
The first relates to applying for a divorce if the parties have been married for less than two years.
Historically, people in this circumstance were required to evidence that they had sought assistance (e.g. marriage counselling) before applying for a divorce. Now there is no difference between people married for more or less than two years. Both still require the need to wait 12 months and 1 day after the date of separation to be eligible to apply for divorce.
The second change relates to Court hearing appearances. When a divorce is applied for, you may apply solo or file a joint application with your former spouse. Historically, if a sole application for divorce was made and there were children under the age of 18 years of the parties, attendance at the Court hearing was required.
Now, there is no differentiation between a joint or solo application, with or without children. No Court attendance is required for the Divorce hearing unless the Deputy Registrar (the person who reviews your application for divorce) identifies a particular issue that requires their attendance at the hearing, or a response has been filed by the other party.
Exemptions from Mediation/Family Dispute Resolution Avenues
Mediations are one of the approved family dispute resolution (FDR) methods. When parents are in dispute about matters relating to the care of their children, before they can apply to the Court for assistance, it is mandatory for them to attend a Mediation or alternative dispute resolution method provided by a FDRP (Family Dispute Resolution Practitioner).
A certificate is provided (known as a Section 60I certificate). This is evidence that the parents have either:
- Attended Mediation and arrived at an agreement
- One person attended Mediation but the other did not; or
- The FDRP or Court Registrar determines that FDR is not appropriate based on the circumstances.
Historically, Court Registrars (the people who are authorised to review applications before they proceed to Court) did not have explicit power to decide whether an exemption to the Section 60I certificate requirement exists. Now they do, even though their decision is subject to review.
Prior to June 10, 2025, people would go before the Court and then potentially be informed that they are not exempt from mandatory mediation/FDR process, meaning they would need to start the process over.
There are now more exemptions to compulsory FDR, including:
- Urgency, including if any delay might pose any risk of child abuse
- There has historically been child abuse &/or family violence by one or both of the parties
- There is a risk of family violence by one or both of the parties
- Someone is unable to participate due to incapacity or their location; or
- In the last 12 months either party has contravened (not followed) Court Orders demonstrating a serious disregard for the Orders in place.
The changes to the laws now means that the Court can reject an application to the Court for Parenting Orders if the applicant does not have either a Section 60i certificate or established one of the above exemptions.
You can learn more about mediation and what to expect from the process on this page, and this page,
Evidence: Increased Confidentiality
The changes in Family Law now in effect extend to something referred to as ‘Protected Confidences’.
That is, where historically one party’s lawyer may have been able to submit documentation or subpoena a professional (e.g. counsellor) or related service, the Court now has the express discretion to determine whether allowing that to be heard, produced, copied or reviewed would be likely to cause harm.
If the Court determines that the disclosure of information could be distressing or harmful to either party or their children, the Court can exercise their discretion and refuse that request.
Alternatively, an Independent Children’s Lawyer (ICL), in circumstances where it is required that a lawyer act on behalf of a child, or a parent/carer may make an application for a direction where they have concerns about what will be revealed will cause harm for a child or children.
This includes people experiencing one or more of the following;
- Mental distress
- Psychological harm or oppression
- If the information made available would be harmful to the party’s ability to care for their children
- Physical harm
- Financial harm
This applies specifically to services where there is a clear or implied obligation of confidentiality, including:
- Physical health services
- Psychological health services (counselling, therapy)
- Specialist sexual violence services
- Specialist family/domestic violence services
- Family counselling
This includes Child Contact Services such as Relationships Australia & Interrelate etc., who provide an environment for parents or carers to have contact with children in a safe and supervised environment, including changeovers (children transitioning from one parent’s care to the other).
Costs Orders: Clarity & Changes
Costs Orders is the name given to Court Orders when a Judge has ruled that one party is legally required to pay another party’s costs as a result of the proceedings. If granted, the amount may be in part or in full or subject to a scale of costs
While the reasons for which Costs Order were issued were largely reflected in previous legislation, they are clearer now and include these considerations:
- The financial circumstances of each party
- The conduct of each party (full and frank disclosure, compliance & general behaviour)
- The case was the result of non-compliance to another Order
- If someone rejected a reasonable offer earlier in the proceedings
- If the Court determines that someone has been wholly unsuccessful in the proceedings they initiated
- Any other issue that the Court deems relevant
Where one party is not complying to the terms of their Parenting Orders or Property Orders, and it becomes an international or cross-jurisdictional matter (i.e. parties are in different countries or jurisdictions), there are now limits on Costs Orders for overseas enforcement.
A Court may issue a Costs Order or a parent may apply for a Costs Order at any point during the proceedings or up to 28 days after the Final Orders of any proceedings were made.
Costs Orders In Parenting Matters
What has been added is a new section that empowers the Court to order each party to pay the cost of an independent children’s lawyer (ICL). Historically, ICLs have been paid for by the public purse (e.g. Legal Aid) and parties were asked to contribute but not legislatively required.
Now Legal Aid in each state or territory requires payment by the parties unless there is a Financial Hardship provision in place.
The new amendment also clarifies when and how the Court can make a cost order, including that if a child welfare officer intervenes or litigation guardian becomes involved and acts in good faith then the Court must not make a costs order against them personally or against the agency they represent.
Costs Orders In Financial Separation (Property) Matters
It is a requirement for both parties to provide all information and documentation relating to their financial position.
This is known as Financial Disclosure. While this has not changed, if it comes to light that one party has withheld information, or hidden assets, the Court may issue a Costs Order for them to pay for the other party’s legal costs.
Overarching purpose is a Cost Order is to compensate the person who is awarded costs, not as a form of punishment against the person who is required to pay.
Enforcement of Property Settlement Orders Upon Death
Previously, the ways in which applications for Property Orders could be finalised after the death of one party to the Orders, was based on the Court’s interpretation.
Now it has been made clear that after a death of either party, as long as the proceedings commenced before the death of one party, the terms of the Orders are enforceable, provided the Court would have made the same Orders if the party had not died. The same requirements apply as explained on this page, in relation to the terms of the Property Orders being “just and equitable”.
Spousal and de facto maintenance ceases upon death as before. There is one nuanced change to financial maintenance and that is that it relates to a change in wording about children. Where previously the term “care and control of children” was used, now it only uses the language of “care” of children.
Timeline For Financial Disclosure Requirements Clarified
Full and frank disclosure of all financial information is a requirement of any property & financial settlement. The amendments to Family Law make it clear that this extends from when Court is contemplated up until the point the case is finalised. That is, right up until Orders have been finalised. Obligations about disclosure are now set out both in the Family Law Act and Family Law Rules.
So, if someone were to experience a financial windfall or become entitled to an inheritance in the days prior to the Orders being finalised, this would need to be disclosed. Each party is obliged to share this information until the Property Orders are issued or submitted.
Pets & Companion Animals In the Property Settlement Process
While previously silent on how pets or companion animals should be considered upon separation and divorce, there are now inclusions in the law to determine how animals are to be treated in the property settlement process.
While usually this is done without the assistance of the Court, the considerations now in Family Law include (but are not limited to):
- Whether the animal is an assistance animal (in accordance with the Disability Discrimination Act)
- Whether the animal was kept as part of a business (e.g. guard dog)
- How the animal was acquired and by who
- Whether there has been any animal abuse (e.g. physical abuse, threatening behaviour etc)
- The attachment of each party or children of the relationship to the pet/animal
We would also likely consider factors such as who paid for the animal’s registration, paid for vet bills and cared for the animal where there is a dispute as to who will “get” the pet as part of the property settlement. The Court has the ability to make an order which allocates the companion as an item of property of one party, order that a third (3rd) party is to be transferred ownership or provide for it to be sold.
Family Violence Considerations In Determining Financial Settlements
Perhaps the most significant of all of the changes that have come into effect relates to domestic & family violence and how that is now considered in the determination of a property & financial settlement.
While family violence has always been something that the Court considered, the definition of family violence has expanded and is more explicit in the legislation and in addition to physical & psychological abuse, includes economic or financial abuse. That is where someone is denied financial autonomy, that they would have otherwise had, if it were not for the financial or economic abuse.
Some examples of financial or economic abuse include:
- Financial coercion (threats, physical, psychologist or emotional abuse)
- Forceable control of a family members money or property (including superannuation)
- Sabotaging a family member’s ability to be employed
- Accumulating debt in the other party’s name
- Forcing financial liability on the person
- Forcing legal liability on the person
- Withholding reasonable financial support to meet living expenses.
Where previously a property settlement has taken into account financial and non-financial contributions of both parties, it is now clear that one of the factors that must be considered when doing a division of property and finances, is the impact of family violence and future factors such as costs for ongoing counselling, and make adjustments to the property split accordingly.
What is unknown at the time of publishing is what evidence the Court will require in order to be certain that an adjustment to a property settlement should be made.
Where family violence was considered in determining property settlements before these amendments, it would often be said that there is not clear evidence that shows that such violence has then impacted on a party from working or being able to do certain things.
At this point in time it is unclear if the Court will continue to require evidence in these circumstances. Or, if it is understood as to the impact of the act of violence, or the widely accepted inferred impact, that we then will not require evidence to show a direct correlation between the act and the causal effect.
While family violence such as coercive control is not a “once-off” and is ongoing, there will be avenues for people to evidence the impact, whether that be through proof of psychologist appointments, collation of receipts or communications, or perhaps reports or assessments.
What is important to mention at this point is that people must be cautious about how they collate evidence. It is illegal in most states and territories of Australia to record audio or video of another person without their express consent. For this reason, you must seek the advice of a family lawyer to learn what will be an effective strategy for your circumstances. The last thing anyone in this situation needs is for the Court to form a negative view of them because of non-compliance with other laws.
So while the impact of these changes to Family Law are yet to be realised, importantly, you are aware of the most significant changes that affect people going through the processes of separation and divorce.
For more information about parenting, property and mediation discussed above, review the list of related articles below.
Accredited Family Law Specialist
Related Information
Additional Industry News & Resources, Property Settlement Resources, Separation & Divorce Resources Information
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