The Government’s New Women’s Economic Security Statement Impacts Family Law

On 20 November 2018, the Commonwealth Government announced a new package of funding measures; the Women’s Economic Security Statement.  The package includes assistance for women including those leaving relationships of domestic violence.  The Package also proposes a new settlement process for small property pool disputes in family law matters.

The Package includes:

The Small Claims Property Pilot

The Package provides for $5.9 million to fund federal Family Courts and the Attorney- General’s Department to conduct a two year trial of a new process designed to create faster resolution of property disputes where the parties property pool  is less than $500,000. The pilot is proposed to be run in selected Family Court Registries across Australia.  There will be two options for separated couples with a net asset pool of under $500,000:

1. Registrar Led Resolution – to assist couples to prepare and file Consent Orders.
2. Judge Led Resolution – where matters are allocated to a Judge to determine the property dispute using a “short form process which may include dealing with the matter without a hearing.”[1]

A recent study from the Australian Institute of Family Studies (AIFS) involving 10,000 separated parents found 57.5% have an asset pool less than $500,000. They also found that the average time to finalise the matter in Court is 15 months.It is not clear if this will be a voluntary opt-in process or be compulsory for those parties in Registries where the trial is conducted. It potentially means that some parties may no longer have the same opportunity to put their evidence before the Court and have the evidence tested.

Lawyer Assisted Property Mediations with Property Pools under $500,000

There is to be a two year trial of funding for Legal Aid lawyers to provide advice and assistance to parties to resolve their property disputes if their net asset pools are under $500,000.

There is also additional funding for Family Relationship Centres to provide mediation services in property disputes.

Superannuation

In a long overdue development, the Australian Taxation Office (ATO) will be authorised to provide information about a parties’ superannuation interest directly to the Courts in a new system to come into operation in July 2020. However this process will only be available when a party has failed to disclose information.  It does not appear that the new system will permit parties who have not commenced proceedings to access this information.

Victims of family and domestic violence will be eligible to apply for early release of their superannuation. This is a welcome development to make funds available to victims, although it will obviously reduce their superannuation entitlements.  Women on average have 42% less superannuation than men at retirement age based on data collected by the Australian Bureau of Statistics.[2]

Family Violence Measures

In 2018, the Attorney-General introduced the Family Law Amendment (Family Violence & Cross-Examination of Partners) Bill 2018 to ban perpetrators of family violence from cross-examining their victims in family law proceedings. There will now be funding for Legal Aid to provide representation to self-represented parties subject of the ban. There has also been further funding announced for Legal Aid’s specialist domestic violence units and Health Justice partnerships. These services deliver legal assistance to family violence victims at hospital and health centres.

[1] Attorney-General’s Department, Small Claims and Property Pilots – federal family courts, https://www.ag.gov.au/FamiliesAndMarriage/Families/Documents/WESP-factsheet-small-claims-court-pilots.PDF

[2] Australian Bureau of Statistics cat no 6523, Household Income & Wealth 2015-16, Median Superannuation Balances of persons aged 55-64.