The property and maintenance provisions in the Family Law Act are set to change. The benefits of the changes include clearer use of language within the Family Law Act and stating what the court will consider when making property and maintenance orders. This may assist parties who are self-represented to better understand what evidence to provide to the court. It may assist lawyers in advising their clients about what the court will take into account in making its decision as opposed to what the court might consider if the decision maker is inclined to do so based on the evidence. This currently is the case in raising family violence issues in property and maintenance applications and where a party has ‘wasted’ assets and incurred certain liabilities.
Factors that the Court will now take into consideration in a property and/or maintenance application in the new regime
Family Violence
Family violence must be considered in assessing contributions when the court is determining the outcome of a property settlement and/or maintenance.
In considering contributions by the parties, the court must consider “the effect of any family violence to which one party to the marriage has subjected or exposed the other party on the ability of the party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c)” (being financial and non-financial contributions towards the assets and home maker and parenting contributions).
Current and Future Circumstances
The court must further consider current and future circumstances.
Here the court must take into account if relevant in the matter before it, the effect of family violence on the current and future circumstance of the other party.
Factors that the court might consider here are where a party was prevented from working in paid employment or where a party may be so affected by family violence, they lack the capacity to work in paid employment.
Wastage
Another factor which is now included to be considered is wastage. Waste is said to occur where funds or assets were wasted on gambling or in making reckless or wanton or negligent decisions in the use of funds or property.
It was not always certain that the decision maker would factor into wastage when making final property orders. Now it must if there is appropriate evidence before it.
The court under the new changes to the Family Law Act must now consider when assessing the parties’ contributions “the effect of any material wastage, caused intentionally or recklessly by a party”…
Material wastage means it would impact the outcome of the settlement such as having less property to distribute as a result. However, the court needs to be persuaded it was more probable than not that the wastage was intended, or so reckless or negligent. A negligent decision is one made without proper care being a decision that a reasonable person would not do and the decision causes a loss.
The court will require detailed evidence about the loss and the conduct that caused the loss.
Liabilities
The court must consider liabilities incurred by either of the parties to the marriage or both of them including the nature of the liabilities and the circumstances relating to them.
This might start to capture liabilities incurred without the knowledge of one party which might be part of the factual matrix commonly seen in financial abuse and economic control and debts related to waste such as gambling debts.
For the court to consider these factors it needs evidence before it and that might include personal witness statements, police records, ADVOs; letters of demand, sale of assets to pay recklessly incurred debts and loan agreements or the granting of charges or security and loan agreements.
Further Resources
To learn more about the new changes to property and maintenance provisions in the Family Law Act, the following resource goes into depth:
- Parliament of Australia:
RAMSDEN FAMILY LAW – HOW WE CAN HELP
If you face such a situation, consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time. Empathy and understanding are crucial to helping clients through these difficult situations.
Our team of dedicated family law specialists brings extensive experience to the table. We understand the nuances of family law cases involving substance abuse and criminal elements. We offer comprehensive legal support tailored to your specific situation. Whether you’re dealing with parenting disputes, family violence issues, or custody battles, we have the expertise to guide you.
We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests. We work diligently to achieve outcomes that prioritise your family’s future.
Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, including those involving substance abuse issues.
If you’re facing family law challenges related to substance abuse or criminal law, don’t hesitate to contact Ramsden Family Law. Your family’s future is our top priority, and we’re here to provide the guidance and support you need.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
Posted in: Property
November 11 2024
