Key points
- Laws must be strengthened to better support victim-survivors of family violence when separating and dividing assets.
- Our submission supports mechanisms to enforce full and frank disclosure so that the value of assets can be promptly and accurately determined.
- Introducing clear qualifications, standards and procedures for Child Contact Services will ensure the safety and security of children during supervised visits.
- We highlight opportunities for reducing repetition and streamlining the Family Law Act 1975 by consolidating decision making principles involved with property settlements into one part.
‘I was under the impression that lack of financial disclosure during a property dispute was a crime – how can any case be fair and equitable without disclosure? We could see that David had provided false documents to a legal proceeding and I wrongly assumed this would be addressed.’ – Mehreen (not her real name)
Proper consideration of family violence as a factor in property disputes will better protect victim-survivors against the real risks of financial stress following separation.
We have backed this important reform and others in a submission to the Attorney-General’s Department on the Family Law Amendment Bill , which proposes a second tranche of changes to the Family Law Act 1975.
As lawyers in some of the most complex family law matters, we see opportunities to improve how the law can help separating families and ensure the safety of victim-survivors of violence.
‘For our clients, a property settlement can be crucial to preventing entrenched poverty following the end of a relationship, particularly where there has been family violence,’ said Gayathri Paramasivam, Associate Director, Family Law.
‘Women who are unable to reach an agreement with an ex-partner who has used family violence, as is common in legally aided family law matters, are often forced to leave the relationship with nothing and as a result, are at greater risk of financial hardship and poverty than men post-separation’, she said.
The Bill makes the Act clearer and more closely aligned with case law.
In our , we express support for the introduction into the Act of additional guidance for deciding property matters, to clarify the decision-making process and provide greater direction to people who make their own property arrangements outside of the family law system.
‘These changes largely reflect the long-standing case law position, providing greater clarity to parties and the community in relation to the principles to be considered,’ said Bernadette Grandinetti, Program Manager, Family Law Services.
‘We support the inclusion into the Act of the impact of family violence as a consideration in a family law property matter, if relevant.
‘This gives due recognition to the harm that family violence inflicts on individuals and the community,' she said.
'Importantly, the exposure draft recognises that family violence may impact upon a person’s contributions both during the relationship and after the relationship.'
The importance of full and frank disclosure
‘We also support mechanisms to enforce full and frank disclosure so that the value of assets can be promptly and accurately determined’, said Gayathri.
‘We are therefore pleased to see the proposed amendments legislating disclosure obligations and consequences for non-disclosure.
‘These are welcome reforms and will likely have a beneficial impact in improving disclosure in property and financial disputes,’ she said.
'While there is already an obligation on parties to make full and frank disclosure, we see in our work that lack of disclosure can be used to delay and extend proceedings and to push cases that could have been mediated, into litigation.’
Our submission shares our client Mehreen’s story to illustrate how withholding disclosure is often used as a tactic of systems abuse that has the effect of continuing family violence inflicted on victim-survivors.
David and Mehreen were married for 17 years. David earned a high salary as a senior engineer for a large construction firm. Mehreen worked casually in retail, however, most of her time was spent raising their three children and looking after their home, as David was often away on work trips for weeks at a time.
Although his income was high, David was also a big spender. He would purchase luxury items, eat at expensive restaurants and take overseas holidays. He accrued many debts that remained unpaid. However, David didn’t tell Mehreen about the debts and in fact, generally left her in the dark over their financial situation. He had many local and overseas bank accounts and assets that she was unaware of and had also taken out several debts in her name without her knowledge or consent.
David would often call Mehreen derogatory names and subject her to other forms of abuse. ‘I had been gradually isolated from any friends because he didn’t want me going out to socialise,’ she said.
‘He was sometimes physically violent to me, to our daughter and to random people (usually women) when he was in a bad mood. The threat and fear of physical violence was always an undercurrent in our relationship. But I was far too scared of him and at the same time dependant on his income to try and leave,’ she said.
Their separation finally came about when he emailed her while away for work, blaming her for their financial situation.
Following their separation, Mehreen remained in the family home with their children. Debt collectors would regularly turn up to their house, demanding payment for David’s debts, as David did not update his address when he left.
The subsequent property proceedings felt like a repeat of what Mehreen experienced throughout their relationship. David failed to comply with disclosure requests or provided select disclosure so that Mehreen’s VLA lawyers could not get a clear picture of the assets and liabilities. Mediation was attempted several times, but the lack of disclosure meant that it was unsuccessful.
Mehreen was ultimately forced to lodge a formal property application with the court.
‘I was under the impression that lack of financial disclosure during a property dispute was a crime – how can any case be fair and equitable without disclosure? We could see that David had provided false documents to a legal proceeding and I wrongly assumed this would be addressed,’ she said.
Shortly after proceedings commenced, Mehreen was told that she would soon receive a large inheritance. This meant that once she received the funds, she would no longer qualify for free legal assistance and would have to engage a private lawyer. Given the lack of disclosure, it was unclear what assets David had and it appeared that the proceedings would predominately be a dispute in relation to his debt. Rather than risk accruing more debt by continuing the proceedings and paying a private lawyer to act for her, and suffering negative effects on her health, Mehreen decided to cut her losses. She agreed to a settlement where she would pay half of David’s debts that were accrued during the relationship, in return for being able to keep the house (which was still subject to a substantial mortgage).
Mehreen said that the toll that proceedings would have on her health was a major factor in her decision to settle.
‘Each time we had to have a mediation session, it first affected my mental health and then my physical health. The aggressive barrister who argued on his behalf – lying on his behalf, confirmed to me that if I had to endure court, it could have had severe consequences to my health condition, I just don’t have the disposition for fights.’
Following the property settlement, David has continued to ignore the debt he agreed to pay and has not updated his address. Debt collectors continue to pursue Mehreen for David’s debts, with letters still arriving at the family home and people waiting at the top of the driveway asking neighbours about when David will be home. Mehreen feels like she still cannot escape the financial abuse that she endured during their relationship.
While we support the policy intent behind the proposed changes, we have made some suggestions for changes to the exposure draft, including to clarify when economic and financial abuse should be considered in property matters and to reduce repetition.
Family law reform so far
The Senate passed the first Family Law Amendment Bill and the Family Law Amendment (Information Sharing) Bill amending the Act in October.
We are confident these changes will improve the system and ensure the best interests of children are prioritised and placed at the centre of the system.
These reforms implement the recommendations of the Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report .
More information
Read our
Read about our evidence to the Senate committee in support of the first Family Law Amendment Bill
Reviewed 29 November 2023