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New Family Law Act ‘raises more questions than answers’, lawyers argue
The “once-in-a-generation” reforms to the Family Law Act have now come into effect, aiming to strengthen protections for victim-survivors. Here’s what family lawyers are saying about the amended legislation – and whether it will deliver on its promise.
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This week (10 June), key amendments to the Family Law Act 1975 came into effect, with the Attorney-General’s Department stating the reforms will “make Australia’s family law system simpler, safer and fairer for all families”.
The Family Law Amendment Act 2024 introduces significant changes to the framework for resolving property and financial matters following the breakdown of a relationship, including a clear provision that “the effect of family violence is a relevant consideration” in such determinations.
Among the new measures, the amendment introduced a framework for determining ownership of family pets during property settlements and grants family law courts the power to restrict the disclosure of sensitive information as evidence in proceedings.
These changes build on reforms introduced during the Albanese government’s first term, including the Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023.
Those earlier reforms established new information-sharing arrangements aimed at protecting families from safety risks and placed the best interests of children at the centre of all parenting decisions in family law matters.
Attorney-General Michelle Rowland MP described the 2024 amendments as a “once-in-a-generation” reform package designed to deliver fairer outcomes for victim-survivors of family violence.
“These once-in-a-generation reforms aim to support victim-survivors of family violence to get a fairer outcome in family law matters and prevent long-term disadvantage,” A-G said.
“Importantly, the changes mean the economic impact of family violence will be considered by courts when property and finances are being divided – strengthening both deterrence and supporting fairer outcomes for victim-survivors of family violence.
While he acknowledged that the amendment would “strengthen protections for victim-survivors,” Hayder Shkara, principal of Justice Family Lawyers, expressed cautious support for the reforms, noting that they “raise more questions than answers”.
“Courts now face the complex challenge of quantifying domestic violence and financial coercion – a task fraught with evidentiary hurdles. I am hoping this does not result in a ‘race to the bottom’ to try and demonise parties now that there is a stronger financial incentive to do so,” he said.
“Family lawyers should all be wary of this approach, and it needs to be acknowledged that without any counterbalance or disincentive to do so, the consequences of such reforms could result in allegations that are harder to substantiate, and even harder to defend.”
Previously speaking with Lawyers Weekly on the same reforms, Michael Tiyce, principal of Tiyce & Lawyers Family Law Specialists, echoed similar concerns.
“Under the new legislation, however, there is concern that these principles have been diluted, potentially giving rise to greater conflict between parents and leaving the door open for a malicious party to seek to reduce time or create allegations. These would have been more difficult to maintain under the past legislation,” Tiyce said.
However, Lander & Rogers partner Chloe Rattray and senior associate Stefan Pantellis offered a more optimistic perspective, noting that while the broader impact is still unfolding, the reforms are a meaningful step forward.
“While the broader community impact remains to be seen, the reforms mark a significant step in recognising the personal effects of violence in relationships,” they said.
“Additionally, removing the counselling requirement for couples married less than two years before divorce is a timely and progressive shift that better reflects the realities of modern relationships.”