Significant Changes to the Family Law Act – Part 2 – Changes to How Evidence is Received in Matters including Subpoena Information and Arbitration

On 10 December 2024, the Family Law Amendment Act 2025 received Royal Assent and became Law, changing significant aspects of the Family Law Act 1975, which is the governing legislation for Family Law matters.  The changes are far-ranging.  This is Part 2 in a series of articles explaining those changes.  Part 1 which is related to the major changes to the property settlement framework can be found here.

Duty of disclosure

The first step in property settlement matters is parties exchanging financial disclosure and unfortunately, this can be one of the most lengthy and frustrating aspects of property matters.  The purpose of financial disclosure is to ensure that the Court and parties have all the information that they need to properly determine a property matter, and can include things such as bank statements, superannuation statements, Tax returns, and any other document that would assist in either finalising the Balance Sheet or corroborating an assertion made by a party. 

However, despite the Court indicating on multiple occasions that the Duty of Disclosure is of significant importance in property matters, the Duty of Disclosure is actually not found anywhere in the Family Law Act in Newcastle itself, but rather within the applicable rules – Federal Circuit and Family Court of Australia (Family Law) Rules 2021.  The amendment changes that and inserts in the Act a Duty of disclosure in property matters for married couples (Section 71B) and also de facto couples (Section 90RI).  Those sections are mirrored and in summary, provide for the following:

1. Each party to the proceedings will have a duty to the Court and to each party to give full and frank disclosure in a timely matter for all information relating to an issue in the proceedings.

2. Such duty will apply from the start of the proceedings and continue until the proceedings are finalised.

3. Subsection 5 and 6 extend this duty to even before proceedings are commenced and during “the preparation for proceedings”.

4. Such duty will cover all financial matters, including property orders, spousal maintenance, the setting aside of a Binding Financial Agreement or termination agreement, orders with respect to the allocation of superannuation, orders pursuant to Section 106B which involve the reversal of transactions that would defeat an existing or anticipated Family Law property settlement, proceedings in relation to a vested bankruptcy property, and child support proceedings.

5. Such duty covers any documents that are or have been in the possession or control of either party.

6. Finally, the section provides that a Legal Practitioner or Family Dispute Resolution Practitioner/Mediator who is engaged by a party in a marriage or de facto relationship must provide that party with information about the Duty of Disclosure, the consequences of not complying with that duty, and encourage the party to take all reasonable steps to comply with the Duty of Disclosure.

Arbitration

Property matters can already be arbitrated under the current Family Law system and can offer parties a speedy and private means to have their property settlement matter determined without making their way through the Court system and the associated delays with that system.  Currently, there are two types of arbitration:

1. Court Ordered – These arbitrations are known as Section 13 E arbitrations and may deal with property and spousal maintenance matters in relation to married and de facto couples; and

2. Private Arbitrations – This can deal with other disputes such as whether a Binding Financial Agreement is binding, superannuation interests and other property matters such as determining whether a de facto relationship is in existence.

The new amendment strips away those two types of arbitration and amalgamates arbitration into a single list of matters as follows:

1. Property and spousal maintenance for married couples.

2. Property and maintenance matters for de facto couples.

3. Financial agreements for married and defacto couples.

4. Financial agreements for de facto couples.

5. Superannuation interests for married and de facto couples.

6. Section 106A – Applications to have someone sign an instrument or document to effect previous orders because one party is not complying.

7. Section 106B – Applications to set aside transactions to defeat Family Law claims.

Less Adversarial Trials and Subpoena

Currently the rules of evidence apply in all property settlement matters, which stands in contrast to parenting matters where the Family Law Act provides that certain provisions of the Evidence Act do not apply unless the Court is satisfied that the circumstances are exceptional. Matters where the evidence rules do not apply are called Less Adversarial Trials.

Whilst the provisions regarding the evidence rules not applying to parenting matters will remain the same, the Court will now be empowered to order that a property matter also be deemed a Less Adversarial Trial if:

1. The party’s consent; or

2. The Court orders that this occurs.

This will allow the Court to relax its requirements about the giving of evidence such as using technology to facilitate remote attendance where there are allegations of family violence and otherwise allowing other evidence primarily of family violence to be admitted to Court where it otherwise would have not been admissible under the rules of evidence.

Commonwealth Information Orders

The Court is already empowered to make what are called Commonwealth Information Orders, which compel Commonwealth departments or agencies to provide information concerning the location of a missing child.  This also includes any information about actual or threatened violence against the child, parent, or another person that the child lives with.

The amendments provide that government agencies are still to provide information about violence even if they do not have any location information for the child.

The amendment also expands the persons who information can be requested to now “a person who has a connection to the child that the Court considers relevant” and makes clear that a Commonwealth Information Order overrides any other law that would prohibit the communication disclosure or publication or production of that information.

Provision of Subpoena Information

Frequently in parenting matters, various allegations are made about a person’s mental health, physical health, or what may have been disclosed to a psychologist, psychiatrist, or counsellor.  Currently, the law provides that the subpoena is relevant and has a forensic purpose, a subpoena can be issued to any organisation and material regarding someone’s engagement with that organisation and material collected by that service can be provided to the Court.

The new amendments would empower parties in the Family Law system as well as the Court to take steps to prevent access to such evidence of certain confidential communication referred to as “protected confidences” if the disclosure of that evidence could be distressing and harmful to parties and the children involved.

This will cover material from services such as:

• Health services such as GP, psychiatrists, and psychologists; and
• Specialist services in relation to sexual assault or family violence.

The Court will now be empowered to stop such material being adduced under two different types of directions:

1. A Section 102BC direction in relation to the adducing of evidence; and

2. A Section 102BD direction in relation to complying with the disclosure requirement.

In relation to Section 102BC, that section would now provide that the Court may direct the evidence not to be adduced or cited as evidence if the Court finds that adducing it would disclose a protected confidence or a document that relates to a protected confidence.  Such application can be made by the person that the information was confided to, the Court itself, an independent children’s lawyer, or a parent, or a person who has the care of the child or is seeking parental responsibility for the child.

Section 102BD directions relate to documents that have already been produced by a subpoena or other requirement under the Act or Rules and empowers the Court to direct that a document not be inspected or copied in a proceeding.  The same persons as outlined above can apply for such an order or the Court itself.

In determining whether to grant such a direction, the Courts must consider the grounds contained within a Section 102BE of the Act, which in summary will be as follows:

1. The Court must firstly be satisfied that:

• It is likely that harm would or might be caused (directly or indirectly) to the protected confider, or to a child to whom the proceedings relate if the evidence were reduced to the document or part produced, inspected or copied; and
• The nature and extent of the harm outweigh the desirability of adducing the evidence or producing, inspecting or copying the document or part.

2. The Court must also have regard to the following matters:

• The probative value, importance, and availability of the evidence.
• The likely effect, likely harm, and the nature and extent of the harm that would be caused if that evidence was adduced.
• The means available to the Court to limit such harm.
• Whether the substance of the evidence has already been disclosed.
• Whether there is a public interest in preserving the confidentiality of the protected confidences.
• Whether the protected confider opposes the disclosure.
• Whether a lawyer is representing a protected confider.
• If the protected confider is a child, whether a person with parental responsibility or to independent children’s lawyer opposes such disclosure.

Such a list is not exhaustive.

There are further amendments that Parliament has made, so please look out for the third part of our article relating to other changes which include changes to children’s contact services, divorce, mediation, and general procedural matters.

Significant changes are coming into force, so it is crucial to obtain accurate, up-to-date advice when those amendments take force, and to also obtain advice about how those amendments may affect any ongoing Family Law matter that will not be resolved by 11 June 2025.

If any of that applies to you, please contact Baker Love Lawyers on 0249 443 322 to make an appointment with our Accredited Specialist in Family Law, Hayden Carr.