The State of Family Law in 2024
More Australian couples are choosing to separate or divorce since the end of the COVID pandemic. What does this mean for Australians going through separation and how is Family Law evolving to reflect modern society?
Since the end of the COVID pandemic, and according to the Australian Bureau of Statistics, there has been a marked uptick in the rate of divorces all around Australia. The statistics around the breakdown of de facto relationships are harder to quantify, but it seems likely that de facto relationships (with and without children) are breaking down at a similar rate. The 2021 census recorded that 15.9% of households (almost 4 million families) reported living in a single-parent household.
Separating parties experience increased rates of depression, anxiety and other mental health illness. Separation also impacts minor children, adult children and even extended families who often feel that they need to take sides.
Why are more couples choosing to separate?
The reasons that people are choosing to separate on a more regular basis are many and varied. They include changes in societal norms and a growing acceptance that divorce or separation is an acceptable option when you are not happy.
Baby Boomers (who are living longer than any generation before them) have more money, more opportunity for travel and work and experiences, and are willing to end a relationship that has run its course, separate amicably and try again for love a second time around.
There is a growing intolerance of domestic violence in any form and increasing options for victims of violent relationships to escape a violent perpetrator.
In households where arguments are common there is an understanding that “staying for the kids” is not always the best thing and that modelling unhealthy relationships can have long term consequences for children.
There is no doubt that the question of why people leave matters. It would be naive to compare the experience of a 60-year-old separating couple who have “fizzled out” but who have managed to retain a deep mutual respect for one another, to the experience of the young mother fleeing a domestic violence relationship with two small children and a duffle bag of worldly belongings. Separating families have bespoke problems, needs, resources and dynamics.
How does managing the Family Law system impact families who are separating?
Navigating the Family Law system can be complicated at the best of times and this complication is compounded by the distress that separating families feel at the point that a relationship breaks down, even when the separation is inevitable or long-coming.
Inadequately navigating the family law system affects the extent to which a party is able to make immediate and long-term parenting arrangements for children in a child-focused way, how they discuss and implement the division of matrimonial assets without descending into costly litigation, and how they determine meeting their children’s medical costs and school fees. In turn, these factors become fundamental to:
1. The cost and duration of the separation. Well-managed separations can be resolved via mediation with more limited costs. Poorly-managed separations can result in extended litigation with eye-watering costs and can take many years to resolve;
2. The ultimate ability of ex-partners to become co-parents when the dust settles. It is not trite to say that there a very few parents who can tolerate years of litigation against one another and subsequently attend children’s awards night together or be able to make major parenting decisions together; and
3. The welfare of children. Whilst it is reasonable to expect that children will take some time to adjust to separation, long term, children can and do cope with their parents separating when the separation is well managed. When children are exposed to antagonism between their parents or they experience a “loyalty bind”, the long-term outcome in terms of education, emotional well-being and mental health can be poor.
20 years ago, when I commenced practicing law, lawyers were people that you went to when you wanted your ex-partner to “pay”. They wrote angry letters threatening that they would “see you in court” and they encouraged separating parties to extend their dispute at every turn.
Evolution of Family Law in Australia
Somewhere along the line, the system began to change (thank goodness!):
Firstly, it became increasingly recognised that Family Law was different to Criminal Law where the individual opposed the State, or Commercial Law where your company opposed a competing company. It became recognised that Family Law involved personal wealth, including people’s homes and most cherished valuables and that Family Law was about children—who could and would be damaged if the process wasn’t managed with care. Those who wanted to work in the space started to do so exclusively (rather than work in general practices) and many took on additional training and became Family Law Specialists.
Secondly, the Family Court, which had been set up as a specialist court for families in 1975, started to become increasingly intolerant of families and their legal representatives engaging in unnecessarily aggressive litigation without genuine attempts to mediate or negotiate (family violence cases can be an exception to the requirement to mediate). When it is safe and appropriate to do so, the Court has become increasingly insistent on requiring that families turn to family therapists or mental health practitioners rather than barristers, and to mediators or parenting co-ordinators rather than judges. It is hard to quantify exactly what percentage of family law matters end up at final hearing, but it is generally quoted that the figure is somewhere between 3-5%. The lawyers who choose to work in the family law space have become accustomed to assisting their clients access and engage with professionals who assisted families in avoiding litigation;
Thirdly, accredited family lawyer specialists became skilled in mediating and negotiating, and they developed new ways to assist families resolve disputes after separation. They became trained in emerging processes of dispute resolution that sought to avoid litigation, such as Collaborative Law and Child Inclusive Mediations. Litigation always remained an option, but it became the option of last resort rather than the first;
Fourthly, the accredited family law specialists who practiced in the family law space, undertook extensive and ongoing training in areas such as:
a. child development, so that they could assist parents to make age-appropriate care arrangements for their children;
b. family violence, so that they could craft orders that ensured that the victims of violence and their children were safe;
and they became skilled in understanding small business and family trust structures, complex asset pools that included inter-generational wealth, and became specialised in personal wealth.
I have been a part of the evolution in Family Law, starting as a basic litigator and subsequently becoming an accredited specialist, a Collaborative Lawyer, an accredited mediator and a Family Dispute Resolution Practitioner. I have undertaken significant training in Family Violence, Parenting arrangements for children with special needs and multiple mediations which have assisted families in resolving their dispute and avoiding litigation.
If you need help with a family law matter, please contact us or book a free initial call.
There is no doubt that the question of why people leave matters.