What the 2022 Federal Budget means for family law

Family lawyer speaking to a client couple.

A number of funding items in the 2022-2023 Federal Budget directly relate to the family law system. We look briefly at these budget items and their possible impact.

A move in the right direction

Changes to superannuation

From 1 April 2022, a party to proceedings in the Federal Circuit and Family Court of Australia may seek an Order that the Australian Taxation Office release details of superannuation held by their former partner. This will assist in removing barriers to equitable property settlements by making it more difficult for parties to conceal their full super entitlements. The change is anticipated to be of particular benefit to women leaving financially or domestically abusive situations where perpetrators seek to continue this abuse by actively concealing their assets. For more information on this item, see our previous article.

Increased funding to legal aid commissions

Funding for legal aid commissions is to increase by $16.5 million over the next two years. This is aimed at meeting increased demand largely arising from the merger of the Family Court and Federal Circuit Court of Australia in September 2021 and its new case management system, which requires a greater amount of "heavy lifting" at the outset of a matter, including new and additional documents to be filed.

Legal aid commissions fund legal representation in family law proceedings for parties who meet a means test. Increased funding may assist to ensure a greater number of litigants, especially self-represented litigants, have access to representation, resulting in a more efficient use of court resources.

Children's contact centres

In circumstances where children cannot safely spend unsupervised time with one of their parents, supervised contact centres are relied on. However, waiting lists for government-funded contact centres are often lengthy, at times exceeding six months before sessions can be accessed.

Additional funding of $101.4 million has been committed to children's contact centres in the Federal Budget, which will allow the expansion of services either through additional staff/facilities, or the establishment of new services in areas of high demand or limited access to existing resources. Provided that the services are staffed by appropriately trained supervisors, extension of these services is very positive for parties and children who require supervision.

Room for improvement

Independent Children's Lawyers

In complex parenting matters, the court may appoint an Independent Children's Lawyer to assist in determining what arrangements are in the best interests of children. These specially trained lawyers are funded by the various state-based legal aid commissions. However, the compensation lawyers receive for this work is, arguably, minimal when considering the workload involved.

Increased funding may result in more lawyers being able to be appointed to undertake this important work, although it is unclear whether the increased funding will also result in increased payments to lawyers, which remains a barrier to otherwise well-qualified lawyers engaging in this work. Realistically, $16.5 million spread across all legal aid commissions in Australia may result in only a small increase to lawyers engaging in this work.

Section 102NA representation

An additional $52.4 million has been allocated to fund legal representation for family law litigants under section 102NA of the Family Law Act 1975, which prevents victim-survivors of family violence from being cross-examined in a hearing by the perpetrators of family violence.

The section 102NA scheme is funded through Legal Aid, and private lawyers who agree to do this work are funded at the legal aid scale rate, which is considerably less than private fees. It is unclear at the time of writing whether the additional funding will result in an increase in the rates paid to lawyers to undertake this work (which may increase the pool of available and appropriately qualified lawyers) and whether it will result in matters being able to be heard by the court more expeditiously.

The Lighthouse Project

The Budget provides additional funding for an expansion of the Lighthouse Project, a court pilot initiative that aims to identify matters involving significant family violence and other safety risks, with parties then referred to appropriate support services and case management through the court system. The additional funding will enable the roll-out to all court registries nationally. This is an important step in providing a nationally consistent approach to cases involving family violence.

Whilst additional funding is to be applauded, the success of the Lighthouse Project still relies on the information provided to the court. With many parties who are at risk of family violence being self-represented, or under-represented, we remain concerned that matters may still "fall through the cracks".

Prevention of family violence and support for victim-survivors

The Budget allocates additional funds for early intervention programs to assist in the prevention of family violence. Again, this is to be applauded, provided the funds go to appropriate and evidence-based programs, particularly where those programs are to address the behaviour of perpetrators.

The Budget also allocates an additional $240 million to the Escaping Violence Payment, which sees individual payments of "up to $5,000" for victim-survivors. Whilst any financial assistance is beneficial, given the costs of living in major cities in Australia, it is questionable whether this provides sufficient support to victim-survivors seeking to leave violent relationships, particularly where they are also leaving with their children. In this regard, additional funds have also been allocated to deliver 720 emergency and transitional accommodation places, to support up to 2,880 women and children each year. Whilst this increase is positive, sadly it is unlikely to meet the entire demand for these types of services.

Community legal centres

Community legal centres, which provide access to free legal advice, will receive $7 million to assist women to obtain legal assistance. This is likely to be of significant benefit, particularly to women whose migration status is associated with family violence and who otherwise are unable to access legal advice and assistance.

Community legal centres are crucial in providing access to justice for those in our community who are vulnerable or cannot afford to meet private legal fees. Accordingly, an increase in funding is extremely positive and will be well received. The reality, of course, is that $7 million across nine services still leaves significant room for improvement.

It is pleasing to see the commitment to these important issues through the Budget. It remains to be seen whether the additional funding will assist in reducing family violence and its impact, and in easing the court's heavy case load.

If you do require any assistance with navigating the family law system, Lander & Rogers' team of family and relationship lawyers is available to help.

Photo by kate_sept2004 on GettyImages.

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