When Divorce Puts a Price on Family Violence
Rethinking the changing face of Family Law… Unsplash
The reforms to the Family Law Act 1975 (Cth) (FLA) have altered the nature and impacts of divorce on couples.[1] It is a known fact that traditionally in the Australian jurisdiction, divorce has been viewed as the ‘irretrievable breakdown’ of a relationship, with ‘no fault’ attributed to any party involved in the separation. However, with the reforms to the FLA aggravating a shift from this approach, controversial opinions have arisen. This heightened the complexities regarding the application of the Family Law Amendment Act 2024 (Cth) (FLA Amendment), which commenced on the 10th of June 2025.[2]
As the explanatory memorandum states, these reforms aim to “codify the approach to decision-making in relation to property division … and better recognise family violence in financial proceedings”.[3] The key changes that the FLA Amendment tackle include:
The recognition of family violence in property settlements, including economic and dowry abuse, which allows courts to consider these long-term factors in divorce settlements;
The significance of pets as family members contrasting with the old approach that positioned pets as equals of property, addressing the social position of pets as “fur children”;
Transparency and disclosure duties, signifying the importance of compliance and fairness with the law; and
Less adversarial process through the courts’ discretion, enabling a more interventionist and less combative approach.
Some legal professionals view these reforms as crucially important such as Rovbert McClelland (Deputy Chief Justice, FCFCOA) who claims these reforms are a big cultural shift, as it recognises the “economic consequences” for abusers.[4] The consideration of the economic impacts of the abuse before the courts has changed too, as the FLA Amendment removes the onus to demonstrate the reason why family violence matters to property division in divorce hearings, as highlighted in Kennon v Kennon (1997) (Kennon), where the Court held that courts may adjust the victim’s entitlement only if they prove the violence had a “discernible impact” on their contributions to the marriage.[5]
Since this was hard to establish by victims, the FLA Amendment targeted codifying and extending Kennon, introducing a more supportive approach towards victims of family violence in separation settlements.[6] The new notion is that the courts will not automatically consider the economic impact of family violence, which may influence the ultimate decision of courts in the division of property.
Analogously, the second reading speech by Mr Dreyfus (Attorney-General and Cabinet Secretary) acknowledges pets’ “important place in Australian families” and that “it is a terrible reality that pets are too often used and abused in cycles of family violence”.[7] The FLA Amendment defines pets as ‘companion animals’, and allows courts to consider family violence history in giving the ownership of a pet to one party after a relationship breakdown. The nature of this family violence impacting pet ownership following the breakdown of relationships may include:
“…any history of family violence during the relationship, the extent to which each party has cared for the animal, any history of cruelty to the pet by a party, and the relationships of a party or a child with the pet.” [8]
Dreyfus argues that these measures will assist in distinguishing pets from other types of properties, recognising pets as “unique type(s) of property that deserve special considerations”.[9]
Nevertheless, some legal critics argue against the potential effectiveness of these reforms, claiming that it is unlikely for them to amount to genuine transformation. Patrick Parkinson (Emeritus Professor of Law) reflects his stance regarding the “cosmetic impact” of the FLA Amendment on the courts’ decisions, suggesting that law reform often changes “the language of judgments but the overall pattern of decisions often doesn’t look much different than before”.[10] This mirrors his concern that the underlying discretion of judges remains untouched, which may result in inconsistent settlement outcomes relating to relationship breakdown.
Correspondingly, Parkinson reinforces the potential issues relevant to the intertwined relationship between judicial discretion and law reform by underlining the Parliament’s rejection of numerous recommendations by the Australian Law Reform Commission (ALRC), which sought to integrate a heightened sense of consistency through the inclusion of factors such as the ‘presumption of equal contributions during the course of the relationship’.[11] These findings raise the question as to whether the reforms under the FLA Amendment truly depart from the “no-fault” ethos of the divorce branch of Australian family law, or whether they solely codify traditional practices of law in a more politically palatable form.
Nonetheless, the FLA Amendment entails further reforms such as the protection of confidences through allowing courts to restrict access to sensitive records like counselling notes where disclosure would cause more harm than benefit. This addresses abusers’ exploitation of subpoenas to retraumatise and intimidate victims.
Furthermore, the FLA Amendment solidified the application of the duty of financial disclosure by giving it statutory force under the new amendments, aiming to increase compliance, along with promoting alternative dispute resolution (ADR) methods to approach settlements by allowing both parties to have access to the full financial circumstantial information. This duty of disclosure ensures a “just and equitable property division” according to the Explanatory Memorandum.[12]
Ultimately, Australian family law has been reforming itself by shifting from the concrete and historical ‘no-fault’ approach by attaching consequences to family violence. However, is this real reform, i.e. a transformation in legal philosophy, radically altering the landscape of family law, or does it merely highlight the necessity of the modernisation of law due to changing societal values?
The FLA Amendment may signal a vital watershed in the manner in which the law approaches the contribution of domestic violence in a court’s decision regarding the aftermath of a relationship breakdown. Nevertheless, the lack of previous actions addressing these issues relating to family violence in divorce settlements raises the critical view that the reforms under the FLA Amendment may fall short of structural clarity, undermining consistency in court decisions.
Whether this is a defiance of the traditional perspective of Australian courts on ‘no-fault divorce’ or merely putting a price on violent behaviour remains unclear. What is clear, however, is that the shifting values of the Australian community as according to the ABS, 1 in 5 Australians have experienced partner violence, necessitating immediate legal action that addresses family violence, ensuring just and fair outcomes for family members.[13]
Edited by Ziaa Zorabi
[1] Family Law Act 1975 (Cth) (‘FLA’).
[2] Family Law Amendment Act 2024 (Cth) (‘FLA Amendment’).
[3] Explanatory Memorandum, Family Law Amendment Bill 2024 (Cth).
[4] Tom McIlroy, ‘Big change to divorce law puts price on violence’, Australian Financial Review, (Web Page, 24 February 2025) <https://www.afr.com/politics/federal/abuse-your-spouse-lose-your-house-divorce-settlement-changes-kick-in-20250217-p5lcqg>.
[5] Kennon v Kennon (1997) FamCA 27 (‘Kennon’).
[6] Ibid.
[7] Commonwealth, Parliamentary Debates, House of Representatives, 22 August 2024, (Mark Dreyfus).
[8] Ibid.
[9] Ibid.
[10] Patrick Parkinson AM, ‘Does changing the Family Law Act make a difference?’, LinkedIn (Blog Post, 27 March 2025) <https://www.linkedin.com/pulse/does-changing-family-law-act-make-difference-patrick-parkinson-h7enc/>.
[11] Patrick Parkinson AM, ‘Did Parliament intend to change the law of property division in the Family Law Amendment Act 2024?’ LinkedIn, (Blog Post, 5 April 2025) <https://www.linkedin.com/pulse/did-parliament-intend-change-law-property-division-act-parkinson-am-wjd5c/?trackingId=mz%2BJUQ1zTbKIV4hP593JhQ%3D%3D>.
[12] Explanatory Memorandum, Family Law Amendment Bill 2024 (Cth).
[13] Australian Bureau of Statistics, 1 in 5 Australians have experienced partner violence or abuse, Media Release, 22 November 2023