ByLawyers News and Updates

Family Law Act – FED

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Changes to the Family Law Act 1975 (Cth) under the Family Law Amendment Act 2024 have effect from 10 June 2025.

The bulk of the amendments relate to property matters, including:

  • significant changes to s 79 of the Act by codifying the four-step process and bringing the s 75(2) considerations into s 79;
  • introducing a new s 79(5) concerning material wastage of assets by one party and the treatment of liabilities;
  • new principles for conducting proceedings;
  • adding the pre-action disclosure obligations in the FCFCOA’s rules into the Family Law Act;
  • requiring greater consideration of the impacts of family violence on property division, including introducing a new 79(4)(ca) relating to the effect of family violence on a party’s ability to make contributions to the marriage, and adding examples under the definition of family violence of economic or financial abuse;
  • a new s 79AA making property orders enforceable against the estate of a deceased party;
  • a new definition of companion animals and the ability for the court to make orders about ownership of them, including transfer to a third party;
  • extension of the Less Adversarial Trial process to property cases in certain circumstances;
  • expanding the court’s power to order arbitration.

Amendments that are not specific to property cases include:

  • repealing ss 44(1B) and 44(1C) to remove the limitation on divorce orders within 2 years of marriage;
  • the requirement for an appearance at a divorce hearing by a sole applicant where there are children under 18 years;
  • updating the costs provisions in the Act by introducing a new Part XIVC and repealing ss 117, 117AA, 117AC, 117C(2);
  • more comprehensive regulation of children’s contact services;
  • introducing a new Division 1B in Part XI, being a scheme to protect sensitive information held by professional service providers.

The By Lawyers Property Settlement and 101 Family Law Answers publications have been updated accordingly.

Some changes under the amending Act commenced on 11 December 2024. They related to Commonwealth Information Orders in children proceedings, and separation declarations relevant to financial agreements. The Children and Financial Agreements commentaries have already been updated for those changes.

In the course of these updates, all the By Lawyers Family Law publications have been thoroughly reviewed and enhanced. Subscribers will notice new and revised commentary, re-ordering of content in the commentaries and on the matter plans, new and amended precedents, new cases, and updated links to legislation and other useful resources. As always, we welcome feedback from our users about these publication updates to: askus@bylawyers.com.au

Defaulters List – FED/NSW

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Family Law Defaulters List – Sydney Registry pilot

The Sydney Registry of the Federal Circuit and Family Court of Australia (FCFCOA) is operating a Defaulters’ List, as a pilot project, from October 2024.

The purpose of the list is to ensure compliance with the relevant Family Law Rules, and with any case management orders and directions made by the court in family law or child support proceedings.

The list is governed by the FCFCOA’s Family Law Practice Direction: Defaulters’ List, which:

  • sets out when a party is deemed to be in default;
  • provides that the onus is on the defaulting party to show cause why a sanction or penalty should not be applied; and
  • notes the powers of the court to sanction and penalise parties, including as to costs.

In considering a show cause application the court can consider:

  • the interests of the parties in the proceedings and the administration of justice by the court more generally;
  • whether the application for relief has been made promptly;
  • whether the failure to comply was intentional;
  • whether there is a good explanation for the failure;
  • the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
  • whether the failure to comply was caused by the party or their legal representative;
  • whether the trial date or the likely trial date can still be met if relief is granted;
  • the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party;
  • whether all parties consent to the step being taken after the specified time;
  • any other matter that the court consider relevant.

See the By Lawyers Family Law – Children and Family Law – Property Settlement commentaries for more information about dealing with breaches of orders.

Family Law – Reference Manual – 101 Family Law Answers

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The Reference Manual – 101 Family Law Answers is the first of the By Lawyers reference manuals to be updated to the new stylish format.

As well as the new format, two commentaries have been added in the Enforcement chapter.

Court enforcement of a child support debt: A child support debt, a debt occasioned due to non payment of a registered maintenance liability, is a debt to the Commonwealth, as opposed to the payer, and is recoverable by action taken by the Child Support Registrar: s 113; or by the payee: s 113A. …

Property orders – Enforcement and the overseas factor: Unlike parenting orders, the Family Law Act, Rules or Regulation make no provision for the registration of property orders in overseas jurisdictions, or the registration and enforcement of overseas property orders in Australia. Furthermore, Australia is not party to any international conventions which provide for the reciprocal recognition of property orders overseas. …

 

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