Calls for courts to better acknowledge family violence in property settlement cases

The Federal Government wants instances of family violence to be given greater consideration in property settlements between separating couples, to better recognise the ongoing financial impact of abuse.

Family violence has been a factor for courts in ruling on the division of assets in the past, but it has never been explicitly included in the Family Law Act.

That has led to concerns about how the principles are applied, and whether there is inconsistency across the country based of different interpretations of previous court judgements.

“The case law has not been clear,” Attorney-General Mark Dreyfus said.

“It enables the court to recognise that family violence carries real financial impact, and is something that can be directly taken into account in family law property determinations by the courts.

“Family disputes are complex, resolving property disputes is equally complex.”

A number of inquiries has recommended the legislative, including the landmark review of the family law system by the Australian Law Reform Commission, which was delivered to government in March 2019.

“We see that there is a real appetite for reform of the Family Law Act,” Mr Dreyfus said.

A man with grey hair, glasses and a dark suit sits with headphones on and speaks into a microphone.

Attorney-General Mark Dreyfus says the legislation shows the Government is serious about making important reforms.(ABC News: Rosa Ritchie)

“There have been dozens of inquiries over the last couple of decades, most of them making recommendations which were never acted on and we’re getting on with the job.”

Lawyer and domestic and family violence prevention advocate Angela Lynch described it as an important change.

“Women’s groups and domestic violence groups have called for these changes over decades because what they have seen is the enormous impact that family violence has on the financial and economic outcomes for women after they separate from violent marriages and relationships,” she said.

“It will provide more consistency in what the approach should be and really will educate both lawyers and our community about what the impacts economically of violence are.”

Ms Lynch said it sends a message to the community that the government wants to see fairer outcomes.

Woman in office smiling

Angela Lynch says reforms would help courts take into account a broader range of factors to ensure greater fairness.(Supplied: WLSQ)

“What we have seen over decades is women being driven into poverty and homelessness after separation, often women in circumstances of domestic violence will also walk away with absolutely nothing,” she said.

“This provision will allow it to be made much more consistently and I think more confidently for lawyers who are the lawyers for victims of domestic violence, they can have more confidence that the court is going to hear those arguments and take those on board.”

It also includes measures aimed at stopping separating couples from hiding assets from each other as their relationships break down.

The duty of disclosure will outline specific requirements about what information needs to be shared by parties to property disputes, and the consequences for not complying.

“Imposing a clear duty on all parties to dispute under the Family Law Act is important, and we think that it will support early resolution of disputes,” Mr Dreyfus said.

 The draft legislation has been released for public consultation, which is open until mid-November.

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