AUSTRALIA Trends and Developments Contributed by: Matthew Doyle, Kate Clissold and Eleanor Lau, Lander & Rogers
• Housing requirements – judges may now look more closely at the need to secure suitable accommoda ‑ tion for children under 18. Family violence and spousal maintenance Under the Amendment Act, family violence is now expressly included among the factors the Court may weigh when determining spousal maintenance. This enables the Court to assess the economic disadvan ‑ tage suffered by a party as a result of experiencing, or being exposed to, family violence. New legal definition: companion animal Traditionally, animals were treated as ordinary prop ‑ erty in family law. The Amendment Act introduces a statutory definition of “companion animal”, being an animal kept predominantly for companionship. This definition excludes assistance animals, animals kept for work or agricultural use, and animals involved in research. The Court may now make a broader range of interim and final orders concerning companion animals, such as: • allocating sole ownership of the animal to one party; • transferring ownership to another person (with consent); or • directing that the animal be sold. Notably, courts cannot order shared ownership or shared care arrangements for companion animals. When deciding such matters, the Court may consider: • any history of abuse or threatened harm towards the animal; • emotional connections between the animal and either party or any child; and • each party’s ability to care for the animal into the future. Add-Backs in Family Law In Shinohara & Shinohara (“ Shinohara” ), the Full Court, sitting in its appellate jurisdiction, held that the recent amendments to Section 79 of the Act now
prevent courts from including notional property – or add-backs – in the parties’ balance sheet. What are add-backs? Add-backs occurred when the Court notionally returned funds or other assets to the parties’ asset pool after one party had used them for their own pur ‑ poses, typically following separation. The most common types of add-backs were: • money spent on legal fees; • where there has been a premature distribution of matrimonial assets; and • waste or wanton, negligent or reckless dissipation of assets. Illustrative example Suppose a couple separates, and, at the time of sepa ‑ ration, there is AUD200,000 sitting in a redraw facility attached to the former matrimonial home. This money forms part of the property to be divided. If, after separation, one party uses AUD50,000 of that joint money to pay their legal fees, the Court could treat the AUD50,000 as if it still existed and was still part of the shared property pool. The AUD50,000 would then be “added back” as a notional asset belonging to the person who spent it. The facts behind Shinohara The financial aspects of the case were relatively straightforward. The parties had lived together for just over six years before separating in February 2023. They had two young children, aged six and four. The mother experienced mental health difficulties, and since separation, the children had primarily lived with the father, with the mother spending only limited supervised time with them. For the purposes of the hearing, both the trial judge and the Full Court adopted a two-pool approach. The first pool comprised the parties’ superannua ‑ tion interests, valued at AUD616,330. The second pool contained all the non-superannuation property, including notional add-backs totalling AUD1,209,399. Of that second pool, AUD616,631 represented exist ‑ ing assets, while AUD592,768 consisted of notional
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