A safe, accessible and inclusive family law system

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Building a safe and accessible system for parents and children

Promoting safety by resourcing a strong family law system

The family law system plays a critical role in our community’s response to family violence and women’s safety.

The dynamics and risks of relationships involving family violence are a key aspect of legally aided family law matters. Victims of family violence are 16 times more likely to have a family law issue than other community members.

Fears about care arrangements for children, children’s safety and homelessness can also prevent victim-survivors from leaving violence.

Timely, accessible legal assistance can empower women to make safe decisions, by enabling them to understand and act on complex legal and financial rights.

We are pleased that many initiatives we have called for in recent years have been developed and piloted. This includes the expansion of the court’s Lighthouse Project to identify and triage cases of high risk.

We’re pleased that amendments to the Family Law Act 1975 place the needs of children at the centre of decision-making. The changes also ensure the court considers safety factors and any history of family violence before making parenting arrangements.

Improving access through better resourcing

Sufficient and sustainable resourcing is needed across the family law system to assist families to resolve their legal problems in a timely and safe way.

Addressing unmet need

Following many years of insufficient funding for family law, eligibility for legal aid is now highly restricted. A person can be a victim of family violence, living below the poverty line, and still not necessarily be eligible for ongoing legal aid representation for their family law matter.

Due to the gendered nature of family violence, women are most impacted by how hard it is to get legal help in family law cases. The consequences of not obtaining legal representation for women are stark. Many will continue to experience family violence, live in poverty, lose a loving relationship with their children or lose contact with them altogether.

We continue to advocate for additional investment for the legal assistance sector to meet unmet and increasing demand for family law advice and representation. This is particularly urgent in regional and remote areas.

Read more in National Legal Aid’s Justice on the Brink report.

Supporting children to participate in family law matters

We believe children should be at the centre of decision making in parenting matters.

Appointing Independent Children’s Lawyers (ICLs) in complex parenting matters is an important way to ensure that children’s voices are heard.

ICLs ensure that children have the opportunity to be heard in decisions that affect them. They meet with children, gather relevant evidence and provide impartial and independent advice to the court on the best interests of children. They are vital to a safe, accessible and inclusive system that centres the best interests of children.

Additional investment is required to appropriately resource the appointment of more ICLs in complex parenting matters.

A simpler, faster process for dividing property

Small property settlements play an important role in creating financial security for vulnerable women and children after a family separation. A recent independent evaluation found that lawyer-assisted mediation in small property disputes can help achieve a quicker, safer and less stressful resolution of legal issues.

The evaluation supported ongoing resourcing for small property claims programs to support more families to agree on how to divide a small amount of assets or debts.

Find out more about our family law property program.

Ensuring children are financially supported

Our practice experience shows parents who receive child support payments, who are mostly women, can often feel controlled through the scheme.

Non-payment, under-payment and manipulation of child support arrangements are forms of financial abuse that can drive women and children into poverty.

We support improvements to the way Services Australia assists parents claiming child support and stronger enforcement for child support debts.

Supporting more families through legally assisted dispute resolution

We support additional investment that enables more separated families impacted by family violence to access Family dispute resolution (FDR) where lawyers are involved and children can safely participate in decision-making.

FDR is an effective and supportive way for separated families to make agreements that are in the best interest of children and resolve disputes without going to court. Our family dispute resolution service shows the advantage of a legally assisted program is that lawyers can boost the capacity of a parent or carer to effectively negotiate in FDR. This gives many victim survivors of family violence the opportunity to participate in a timely and safe decision-making process outside of court.

In disputes about children, FDR is always child-focused and children participate in decision-making through an Independent Children’s Lawyer or through our child-inclusive Kids Talk program.

Mehreen’s story

David and Mehreen were married for 17 years. David earned a high salary as a senior engineer for a large construction firm. Mehreen worked casually in retail, however, most of her time was spent raising their three children and looking after their home, as David was often away on work trips for weeks at a time.

Although his income was high, David was also a big spender. He would purchase luxury items, eat at expensive restaurants and take overseas holidays. He accrued many debts that remained unpaid. However, David didn’t tell Mehreen about the debts and in fact, generally left her in the dark over their financial situation. He had many local and overseas bank accounts and assets that she was unaware of and had also taken out several debts in her name without her knowledge or consent.

David would often call Mehreen derogatory names and subject her to other forms of abuse. ‘I had been gradually isolated from any friends because he didn’t want me going out to socialise,’ she said.

‘He was sometimes physically violent to me, to our daughter and to random people (usually women) when he was in a bad mood. The threat and fear of physical violence was always an undercurrent in our relationship. But I was far too scared of him and at the same time dependant on his income to try and leave,’ she said.

Their separation finally came about when he emailed her while away for work, blaming her for their financial situation.

Following their separation, Mehreen remained in the family home with their children. Debt collectors would regularly turn up to their house, demanding payment for David’s debts, as David did not update his address when he left.

The subsequent property proceedings felt like a repeat of what Mehreen experienced throughout their relationship. David failed to comply with disclosure requests or provided select disclosure so that Mehreen’s VLA lawyers could not get a clear picture of the assets and liabilities. Mediation was attempted several times, but the lack of disclosure meant that it was unsuccessful.

Mehreen was ultimately forced to lodge a formal property application with the court.

‘I was under the impression that lack of financial disclosure during a property dispute was a crime – how can any case be fair and equitable without disclosure? We could see that David had provided false documents to a legal proceeding and I wrongly assumed this would be addressed,’ she said.

Shortly after proceedings commenced, Mehreen was told that she would soon receive a large inheritance. This meant that once she received the funds, she would no longer qualify for free legal assistance and would have to engage a private lawyer.

Given the lack of disclosure, it was unclear what assets David had and it appeared that the proceedings would predominately be a dispute in relation to his debt.

Rather than risk accruing more debt by continuing the proceedings and paying a private lawyer to act for her, and suffering negative effects on her health, Mehreen decided to cut her losses. She agreed to a settlement where she would pay half of David’s debts that were accrued during the relationship, in return for being able to keep the house (which was still subject to a substantial mortgage).

Mehreen said that the toll that proceedings would have on her health was a major factor in her decision to settle.

‘Each time we had to have a mediation session, it first affected my mental health and then my physical health. The aggressive barrister who argued on his behalf – lying on his behalf, confirmed to me that if I had to endure court, it could have had severe consequences to my health condition, I just don’t have the disposition for fights.’

Following the property settlement, David has continued to ignore the debt he agreed to pay and has not updated his address. Debt collectors continue to pursue Mehreen for David’s debts, with letters still arriving at the family home and people waiting at the top of the driveway asking neighbours about when David will be home. Mehreen feels like she still cannot escape the financial abuse that she endured during their relationship.

More information

Read our recent family law reform submissions: