It’s broken so let’s fix it – The Australian Family Law System

By Perpetua Kish, Principal Lawyer

“The Australian family law system is bloody awesome”
Said no one ever.

In fact, in 2017 former Chief Justice Diana Bryant said “I feel that the (Family Courts) system is letting the people down” and former Attorney-General, George Brandis agreed noting that “broad consensus (is) that the system is now in many ways dysfunctional and a comprehensive overhaul is needed”.

So what is the system?

Our family law system is underpinned by the principles in our Family Law Act 1975.

The Family Law Act 1975 is the main law on matters involving divorce, property settlement, maintenance and parenting arrangements following the end of a marriage or de facto relationship. The courts that exercise the jurisdiction under the Family Law Act are the Family Court of Australia and the Federal Circuit Court of Australia.

The system is supposedly designed to encourage separating couples to negotiate their own settlement, and where they are unable to, they can refer their matter to the Courts for judicial determination.

Judges are empowered to make decisions about property and parenting matters. For property matters, they are guided by a four step process which we explain here.

For parenting matters, their scope is far reaching, and goes beyond just determining who children should live with. They can make decisions about travel, relocation and education. They can also decide whether a child should undergo a medical procedure, or have a relationship with a person who has been accused of child abuse, family violence or neglect. 

What all this means is that a Judge decides what is best and applies a legal solution. And there will always be at least one party (usually both), disgruntled or even devastated by the outcome. There are no winners.

In response, we have seen the rise of family lawyers who espouse to “do things differently” by bucking tradition, advocating for alternatives and embracing a collaborative approach.

When lawyers can really profit from the dysfunctional system, especially those who bill by the hour, why are some lawyers rejecting it? While empathy and concern for the needs of separating families who get tied up in the system is one factor, another is that family lawyers at the front line have had enough. Levels of burnout, depression and anxiety are sky high and many experience disillusionment and loss of purpose.

Consequently, many committed groups of lawyers (both litigators and those that favour out of court approaches) are striving towards a better system, but my feeling is if we expect the Government/lawmakers/judiciary and the like to fix it, we shouldn’t expect very much.

I don’t know all the answers, but focussing on the problem has never really been my bag. So here are my thoughts:

In Australia, we have freedom and we have choice. We have resources to disseminate information. Almost anyone these days can get on their soap box (ie social media platform) and advocate for change, criticise, protest or call for reform without persecution.

Just as we have the freedom and choice to advocate for change, most people in the midst of separation and divorce, also have freedom and choice in varying degrees as to how they engage with the family law system. They can freely choose to separate. They can freely choose to be cooperative instead of combative. They can freely choose to listen to understand or listen to respond. They can freely choose to give instead of take. They can freely choose to be kind.

And this is where lawyers who want to effect real change can make a difference, because most reasonable people who make choices that have consequences often do so because of information available to them. On Google, social media, news, the general public perception … or from their lawyers. 

How can  lawyers inform people so they make better choices so they don’t end up in the system in the first place? If lawyers educate people that there is another way, a better way to resolve conflict – Surely therein lies the answer?

So to do things really differently, focusing on education is key. And to be clear, educating or advising on family law isn’t simply about making sure separating couples know what their rights and entitlements are or simplifying a complicated legal system, especially when that legal advice is underpinned by the very system many recognise to be problematic.

No, if lawyers truly want to effect change, they need to look at how we approach separating couples and consider their relationship with their former partner. It hasn’t really ended at all, it’s just changed. Does the lawyer’s advice foster trust or suspicion? Kindness or resentment? Co-operation or combat? Needs or wants? Focus on solutions and not problems? Remember, hate doesn’t lead to happiness. Lawyers need to empower separating couples and help them find the tools they need to make the right choices so they may find true peace, balance and harmony after divorce.

Balance Family Law is a non-adversarial, collaborative law firm that really does do things differently.

Perpetua has over a decade experience as a family lawyer, is a trained collaborative lawyer and conflict coach.

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Finalist - Corporate Kindness Awards

Issued by Corporate Kindness Awards · Winners announced April 2022

Winner - Sole Practitioner of the Year

Issued by Australian Law Awards · Dec 2021

Winner – Partner of the Year (Family Law)

Issued by Lawyers Weekly Partner of the Year Awards · Nov 2021

Winner - Service Business Award

Issued by Ausmumpreneur Awards · Sep 2021

Winner - Service Business of the Year

Issued by Roar Awards · Sep 2021

Winner - Innovation Award for Legal Education and Change Initiatives

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Winner - Top Boutique Law Firm 2021

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Winner- Boutique Law Firm of the Year

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Finalist - Boutique Law Firm of the Year

Issued by Australian Law Awards · Jun 2021

Finalist - Innovator of the Year Award (Company)

Issued by Australian Law Awards · Jun 2021

Finalist - Innovator of the Year Award (Individual)

Issued by Australian Law Awards · Jun 2021

Finalist – 30 Under 30 Award (Family Law)

Issued by Lawyers Weekly 30 under 30 Awards · Apr 2021

Winner - Rising Stars in Family Law

Issued by Global Corp Media · Mar 2021

Finalist -Rising Star Ausmumpreneur of the Year

Issued by Ausmumpreneur Awards · 2021

Finalist -Social Change Hero

Issued by Roar Awards · 2021

Winner - Boutique Law Firm of the Year

Issued by Australian Law Awards · Sep 2020

Winner - Family Law Firm of the Year

Issued by Corporate Live Wire · Sep 2020

Winner - Service Business Award

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Winner -Emerging Mumpreneur

Issued by Ausmumpreneur · Sep 2020

Finalist - Sole Practitioner of the Year

Issued by Australian Law Awards · Aug 2020

Winner - Rising Stars of Family Law

Issued by APEC Insider · Jul 2020

Winner – Family Law Firm of the Year (Australia)

Issued by International Advisory Experts (IAG) 2020

Outside of Balance, I am an adjunct lecturer and assessor with the College of Law in the ACT. In this role, I lecture and mentor future lawyers in the ACT and surrounding regions, as they complete their Practical Legal Training (which is the course you are required to complete to be able to practice as a lawyer).

When I am not lawyering I love to travel and have already made it to 18 countries across Europe and Asia. My personal goal is to travel to every continent, including Antarctica. My favourite destination so far is Lauterbrunnen in Switzerland, where I skydived over the Swiss Alps!

My innovative approach to law has seen me, and Balance Family Law recognised with over 23 national and international awards and accolades since 2020 including the prestigious Lawyer’s Weekly Family Law Partner of the Year 2021, Australian Law Awards Sole Practitioner of the Year 2021, Australian Law Awards Boutique Law Firm of the Year 2020 and the Gold Ausmumpreneur Award for a Service Business in 2020 and 2021. I have also received consecutive Chief Minister’s Awards for Excellence for my work with families and children on the frontline during my time working in child protection. In 2022 and 2023, I was invited to be a Judge at the Lawyers Weekly 30 Under 30 Awards, and Partner of the Year Awards, and the National Ausmumpreneur Awards.

As one of Australia’s most respected family lawyers and a gamechanger in the lawyer space, I look forward to working with you to navigate this challenging time in your life.