Family violence in family law – uncharted waters

Further changes to the Family Law Act are on the horizon, which are intended to make the family law system “simpler, safer and fairer for all Australian families” ¹– but could they actually have the opposite effect?

Family violence in family law matters is disappointingly common, featuring in 80% of Australian family law parenting cases before the Courts.² To address the prevalence of family violence in family law property matters, part of the amendments taking effect from 10 June 2025 include:

1. An expanded list of examples of behaviour that might constitute economic or financial abuse, to strengthen the existing definition of family violence at section 4AB of the Family Law Act 1975 (Cth) (the Act); and
2. Making family violence an explicit factor for the Court to take into account in property matters, both in relation to the contributions that a victim-survivor would have otherwise been able to make, and the impact on them in the future.

But the law continues to grapple with the interpretation and application of the law as it stands, and public consultation on the proposed amendments included criticism of the uncertainty that the amendments would create:

“What they [the amendments] do not do is to provide any degree of predictability or certainty about the extent to which a finding (or findings) of family violence will affect the division of property. This will therefore require some time for the case law to develop to provide guidance to litigants and lawyers about the likely outcome if a matter goes to court.”³

The current definition of family violence in the Act is broad, being “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”⁴  It is a concept which continues to challenge litigants and family law practitioners, such as in the recent case of Pickford & Pickford [2024] FedCFamC1A 249 (Pickford).

In Pickford, the Full Bench of the Full Court of the Federal Circuit and Family Court of Australia (Division 1) charted the content of the legislative definition, with diverging approaches, in an appeal from a first instance decision following a protracted final hearing of 11 days duration over a 12-month period.

The case was confined to a narrow question of how much time two children, aged 9 and 7, should spend with their Father during school terms, in circumstances where:

• They were spending four (4) nights per fortnight with their Father until trial;
• The Mother sought that the children spend three (3) nights per fortnight with the Father, and the Father sought that the children spend seven (7) nights with him per fortnight; and
• All parties agreed that the children should spend half of their school holiday time with the Father.

Justices Austin and Williams gave the main appeal reasoning, noting that:

• It is for the party alleging family violence to prove their allegations to the same standard as any other contested factual issue.⁵
• The conduct of parties in family law matters which may meet the statutory definition of family violence does not inevitably mean that family violence has occurred. Conflict between parties and family violence are not inevitably one and the same.⁶
• Conduct causing a party to experience fear will meet the statutory definition, and is assessed to the subjective standard, but conduct alleged to coerce or control requires actual, objective coercion or control.⁷
• Whilst a family law litigant may engage in unmeritorious, harmful or vexatious proceedings, family violence is not committed by a party simply exerting their legal rights and expecting that they will be adjudicated according to the law. Refusing to consent or submit to the orders sought by the other party, making and maintaining applications which the other party opposes, and maintaining legal arguments which the other party refutes, is not, of itself, an act of family violence.⁸
• Justices Aldridge and Carew did not agree with the reasoning of Austin and Williams JJ insofar as the interpretation of family violence under the Act included only two types of conduct:

1. Behaviour which coerces or controls; and
2. Behaviour which causes fear.

It was the view of Aldridge and Carew JJ that “The definition of family violence is necessarily broad and any interpretation that may be perceived to, or actually, create unnecessary hurdles to an alleged victim proving an allegation of family violence should be avoided.”⁹

As a result, a party’s conduct could be reasonable and proper, or coercive or controlling, depending on the Court’s evaluative findings following a forensic assessment of all of the circumstances and evidence before it.

McClelland DCJ agreed with their Honours’ more expansive view of family violence and noted that determining whether a person has been subject to family violence calls for an “appreciation of a pattern or series of acts, the impacts of which will usually be both intersecting and cumulative, rather than incident specific.”¹⁰

Even in the well-established domain of parenting matters, where family violence is a relevant factual issue in the majority of cases, the Court continues to grapple with the concept and treatment of family violence, leaving parties in uncertainty and practitioners to traverse a complex and nuanced domain.

Discussion of the way in which the upcoming amendments will change family law property settlements has adopted, amongst practitioners, a shorthand of “codifying Kennon”, referring to the Full Court of the Family Court of Australia case of Kennon v Kennon (1997) 139 FLR 118, which established that family violence is a relevant factor to be taken into account in the “relatively narrow band of cases”¹¹ 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, put the other way, to have made his or her contributions significantly more arduous than they ought to have been…”. ¹²

It remains to be seen whether the Court interprets the amendments to be a simple statutory re-statement of the existing approach, which has been said to have a “narrow and limited effect on the outcomes in property cases”.¹³

Amongst the trepidations held by some, is the concern that the amendments could exacerbate difficulties with evidence and case management which already impede the timely administration of justice in family law matters.

• Victim-survivors already face hurdles putting sufficient evidence before the Court to prove their experience of family violence to the standard required under the Kennon principle. A statutory re-statement of the existing principle stands to make nil practical difference to the lives of parties affected by family violence.
• Parties wanting to “hedge their bets” may seek to adduce more evidence than they would before, giving longer and more detailed affidavits to enhance their chance of a better outcome on the basis of family violence. Refuting allegations will also assume greater significance. These factors stand to expand the resources that parties need to litigate their case and which the Court will need to allocate for trials and judgments in such cases.

The question also remains over the potential for damage as a side-effect of these factors. Negative public perceptions of family law, and the Court, may be intensified if the amendments do not achieve their intended aims, and victim-survivors may find themselves in protracted litigation with their abusers, which presents risks to their personal safety, re-traumatisation and their mental health long after the proceedings conclude.

There is no way to know, before 10 June 2025, how the Court will interpret and apply considerations of family violence in property settlements, or how findings about family violence will translate into quantifiable outcomes for parties. For now, we watch and wait.

Avoiding a hostile family law dispute calls for a specific skillset. It can be difficult to strike the right balance between asserting your position and preventing conflict from escalating. What that balance looks like will be unique to each matter.

Our Family Law team can assist you with all aspects of marital and de facto separation, including advising you on your rights and entitlements, and helping you achieve prompt solutions to complicated family law problems.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes