Most of the changes to the law will commence six months after royal assent, providing family lawyers with a short period of time to familiarise themselves with the new law and the implications for their matters, including those matters that are presently before the court.

There are several amendments relating to property matters, the regulation of Children’s Contact Services, case management and procedural matters (including extending the application of less-adversarial trial processes to both child- and non-child-related proceedings). This article focuses on the amendments related to family violence.

The reform of the Family Law Act 1975 (Cth) (“Family Law Act”) sends a clear message to the legal profession and the community that the economic consequences of family violence must be considered when resolving property and financial aspects of a relationship breakdown, where relevant.

What will change?

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Family violence is a serious and widespread problem in Australia. In the 2022–23 financial year, more than four in five parenting, or parenting and property matters, involved allegations that a party had experienced family violence (83 per cent).

Despite this prevalence, there has been no legislative recognition in the Family Law Act of the relevance of family violence to the division of property, and instead, lawyers and self-represented litigants needed to rely on the principles set out in case law.

The Full Court case of Kennon & Kennon (1997) established the principle that where there is a course of violent conduct by one party towards the other during the marriage, which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or made that party’s contributions significantly more arduous than it ought to have been, that is a fact that can be taken into account in assessing the parties’ respective contributions.

Once the new law commences, where a party has been subjected or exposed to family violence by the other party to the relationship, the court will need to consider the economic impact of that family violence when assessing the contributions, the current and future circumstances, and the proper provision of spousal maintenance of the party who has been subjected or exposed to that family violence.

The reforms do not adopt the “significantly more arduous” language used in Kennon & Kennon. Family lawyers will be closely watching how the court applies the new law once it commences and how the court will consider the effect of family violence on the assessment of contributions, as well as the current and future circumstances of parties.

Importantly, the explanatory memorandum states that the purpose of the amendments is not to punish or order compensation for family violence, but to enable the court to consider the effect of family violence as part of a holistic assessment of the respective contributions of the parties and their current and future circumstances.

The definition of family violence in the Family Law Act will include specific examples of behaviour that might constitute economic or financial abuse of a family member, including dowry abuse. This will assist people to understand and identify this type of behaviour as family violence.

The reform is intended to make the law more accessible to self-represented litigants and those who choose to resolve their matters without the benefit of legal advice.

What do family lawyers need to consider?

Family lawyers will now need to take detailed instructions in relation to family violence in all financial and parenting matters. This takes time and skill. Even though the new law will not commence for approximately six months, family lawyers will need to obtain those fulsome instructions now, so that they understand potential outcomes for their clients under the current law and the new law, where relevant. Lawyers will also need to start preparing evidence for trials that will be heard once the new law has commenced.

In accordance with the Family Violence Best Practice Principles published by the Federal Circuit and Family Court of Australia, professionals working in family law are expected to:

1. Work in a trauma-informed way; and
2. Engage in ongoing training regarding family violence. They are expected to understand the multifaceted layers of family violence, to work carefully and respectfully with their clients, and to ensure that the courts are provided with documents that articulate the violence, coercive control, and other cross-cultural or religious matters that may alter the nature and dynamics of the abuse.

Public awareness that family violence is explicitly relevant to the determination of a property settlement will create new complexities for family lawyers to navigate.

It may act as a barrier to people seeking access to justice and pursuing a property settlement, as there may be reluctance to discuss these matters with a lawyer or have them disclosed to the court.

It can be common for victim-survivors of family violence to take time to make disclosures of family violence as they can feel unsafe, fearful, or find it hard to trust.

This will need to be factored into the way in which lawyers take instructions and manage the conduct of both parenting and financial matters.

Specialist training can assist family lawyers to recognise indicators of family violence, ask questions about family violence and respond effectively to disclosures of family violence in a trauma-informed way.

Family lawyers will be watching with interest as the new law commences and starts to be applied by the court.

Genevieve Morgan is a principal in Barry Nilsson’s family law team. She is an NSW Law Society-accredited family law specialist and a collaboratively trained lawyer. She is co-president of the Central Sydney Collaborative Forum and a board member of the Australian Association of Collaborative Professionals.