Family law: An unloaded gun

I came to the law late, at 58, after a long life in engineering, business and finance, and set up my own practice at 61. Coming to it late means I never learnt to accept as normal the things career practitioners have stopped noticing. What I have seen is a system in which the profession is structurally positioned to profit from an endemic societal problem, and in which the restraints on that profit have proved toothless. This is not a complaint about one side of the record. It grinds down men and women equally.

The machine runs on conflict. The adversarial process is built to produce contests, and so contest is what it produces. A three-line email is met with a three-page letter; the letter is met with another. Applications, subpoenas, valuations, and expert reports multiply until the file is fat enough to justify the fees already charged. Nobody breaks the rules. That is the tragedy: the rules themselves manufacture the fight.

The meter never stops. Costs are billed in six-minute units, and in a property matter, the money that funds the war is the property being fought over. Both sides draw their fees from the same shrinking pool the parties are trying to divide. The harder they fight, the less is left to split. I have seen couples spend tens of thousands to contest a few thousand, and the only guaranteed winners were the lawyers. Yes, costs disclosure obligations already fill several pages of every retainer, under the Legal Profession Act 2007 (Qld) where I practise and the Uniform Law in the southern states. But disclosure drafted by lawyers, handed to a frightened client at the moment of engagement and updated after the money is spent, is not protection. It is inoculation.

Too many practitioners are out of their depth. A property settlement demands command of valuation, tax, trusts, superannuation and corporate structures. Many self-styled family lawyers know how to file a form and brief a barrister but cannot read the balance sheet they are arguing about. The client pays in full for that incompetence, and pays again when the errors have to be repaired. The rewritten property provisions that took effect on 10 June 2025, which now expressly direct the court to consider the economic effect of family violence, do not make a settlement arithmetic. But a lawyer cannot weigh what they cannot read.

And the people pay. I have seen parents settle for far less than they were owed just to stop the bleeding, and others pushed to keep fighting long past sense because nothing in the incentives around them rewarded stopping. Those who cannot pay at all appear for themselves, against an opponent with counsel. Behind them stand the children, absorbing the toxicity while every disputed dollar is a dollar not spent on their future. The system speaks of “the best interests of the child” while running a process almost perfectly designed to injure them.

And here is the damning part: the reforms already exist. Pre-action procedures already require genuine attempts at dispute resolution and full disclosure before filing. The court’s governing act already imposes an overarching purpose of proportionate cost, binding practitioners as well as parties, and permits costs orders against lawyers personally. Cost disclosure is already mandated in every state. The framework a reformer would design is already on the statute book. So, ask how often any of it is enforced. How many practitioners have been made to pay costs personally for churning a file? The powers sit in the legislation like an unloaded gun: everybody can see them; nobody has heard one fired. The Australian Law Reform Commission said much of this in Report 135 in 2019. Very little has changed.

VIEW ALL

The fix, then, is not a new law. It is a consequence. Tether costs to the value genuinely in dispute and enforce it. Making non-compliance with the pre-action rules cost the practitioner rather than the client. Require anyone dividing other people’s financial lives to actually understand the finances. Make costs disclosure something a distressed client can use rather than something a practitioner hides behind.

You may say I am an outsider to this jurisdiction. I am, and that is the argument, not the answer to it. What I have described would not survive a fortnight in commercial litigation, where clients are sophisticated and costs are scrutinised. Family law tolerates it because its clients are frightened, grieving, and in no condition to complain. Until somebody picks up the powers that already exist, this remains what it is: a machine that runs on other people’s grief and calls the result justice. The first step is to stop pretending that what we have now is anything other than a cesspit of greed and incompetence.

Dr John Cronin is the principal of CSM Solicitors.