Family matters: 50 years of the Family Law Act

A hallmark of a democratic society is the resilience of its institutions. As one of the three pillars of government, the judiciary plays an important role in the interpretation of black letter law. Yet its decisions can have a profound impact on people’s lives. The Family Court of Australia, which commenced operation on 5 January 1976, was established under the Family Law Act. Despite its short history, the Family Court of Australia has been through significant changes. 

A need for a specialised family court

The need for a specialised court to deal with family law matters is best encapsulated in Gough Whitlam’s second reading speech for the Family Law Bill 1974. He stressed that while there are legal elements and technicalities involved in divorce, there is a human element as well. 

“Broken marriages involve persons from every stratum of society. Furthermore, the determination of how best to enable broken marriages to be dissolved is very much a human, as distinct from a technical, legal problem,” Whitlam said.

Prior to the introduction of the Act, there were limited grounds for divorce based on outdated principles derived from the Ecclesiastical Courts of England. Under the Matrimonial Causes Act, petitions for divorce could not be made within first three years of marriage without leave. Grounds for divorce included adultery, desertation and cruelty. Archaic rights such as “restitution of conjugal rights” still existed. 

Given the emotional and human element in family law, lawmakers recognised the need for both legislation that was more in line with modern values, and a specialist court to deal with such matters.

A rocky start 

The Family Court was designed to be accessible, flexible and with less formality than traditional court hearings. However, the first two decades after the establishment of the Court were fraught. The Court had accumulated a backlog of divorces and lacked sufficient resources to deal with the caseload.

Unlike the Supreme Court of NSW (established in 1824) and the High Court of Australia, (established in 1901), the Family Court of Australia was a young court and in its early days, it faced apprehension from the other courts.

Alastair Nicholson was Chief Justice of the Family Court from February 1988 to July 2004. Only the second Chief Justice of the Court, he was appointed during a time of huge change. 

Nicholson tells the Journal it took a long time to overcome a resistance from other courts, recalling one incident shortly after his appointment.

“[I] had a telephone call from Sir Laurence Street who was Chief Justice in NSW, and he invited me to come to the Chief Justices’ meeting which was due in the next couple of months,” he says. The invitation was later withdrawn as Chief Justices of the Family Court had never been invited to the meeting before. “That was a bit of a smack in the face.” 

Nicholson became Chief Justice during a dark period in the Family Court’s history. In the 1980s a series of attacks on its judges sent shockwaves through the judiciary, the legal profession and the community.

On 23 June 1980, Justice David Opas was gunned down and killed at his home in Woollahra.

On 6 March 1984, another Family Court judge, Justice Richard Gee and his two children survived a bomb which exploded on the front doorstep of their family home in Belrose. A few weeks later, the Family Law Court building at Parramatta was seriously damaged in another bombing and in July that year, the wife of Justice Ray Watson was killed instantly when a bomb went off at their Greenwich home.

In February 1985, a bomb was found in a vehicle at the former home of solicitor Gary Watts. Then in July that year, the Kingdom Hall of the Jehovah’s Witness church at Casula was the target of another bomb attack. One person was killed, and thirteen others were injured in the blast.

Nicholson recalls bomb threats were such a common occurrence at the Sydney registry that the Court ultimately decided they would simply proceed with matters.

“[T]hat [was] a slightly nerve-racking decision, as it turned out, it was the correct one. It was something that took a little bit of getting used to, even to the point where if I walked out on the streets of Sydney, I was usually followed by a plain clothed policeman and I wasn’t used to that. It was quite unusual,” he says.

Following the bombings, the Court implemented protocols to protect judges such as suppressing their names in decisions and court lists. A solicitor from that era recalls signs asking practitioners to refrain from speaking to or acknowledging judges if they recognised them in the lift.

Following the attacks the Court adopted more formal procedure which Nicholson describes as inevitable. “I think that the formality was … a protective device in many ways,” he says.

The bomber, Leonard John Warwick, committed the heinous attacks on the judiciary and others, feeling aggrieved over a family law matter. Since the establishment of the Family Court, disgruntled fathers and men’s groups accused the Court of gender bias, particularly in relation to parenting matters and custody of children.

In each decade since the establishment of the Court, different issues have arisen. This includes resourcing, the length of time taken for matters to be heard and resolved, and the cost of going to Court.

Need for a single point of entry for family law matters

Immediate past President of the Law Society of NSW, family lawyer and former Senior Judicial Registrar of the Federal Circuit and Family Court of Australia, Brett McGrath has witnessed remarkable changes both in practice and on a policy front.

“One of the taglines for the Family Court is that change is the only constant,” he says.

McGrath recalls that when he first started practising in family law in 2012, Stanford v Stanford had just been decided. It was significant as it introduced another step in financial proceedings.

He acknowledges that over the past decade there has been a significant refinement of the approach by the government and the Court, especially in recognising the impact of family and domestic violence.

Dr Rachel Carson, senior researcher at the Australian Institute of Family Studies (AIFS), explains recent family law reforms contained in the Family Law Amendment Act 2023 include provisions aimed at addressing systems abuse, such as ‘harmful proceedings’ orders. Earlier research had found the courts were being used to commit further abuse or family violence against former partners.

A previous AIFS study found 60 per cent of mothers indicated that they often or sometimes felt fearful, compared with 41 per cent of fathers.

A tale of two courts

The merger of the Family Court of Australia and the Federal Circuit Court of Australia in 2021 was a significant moment. Instead of filing an application in two separate courts, parties could file in one and that simplified the process for parties as they navigated their way through the legal system.

“[T]he only way that merger of the Court worked … is because of the resilience of the legal profession,” says McGrath.

The COVID-19 pandemic also marked another significant turning point in the way the Court held hearings and other court events. It triggered a shift  from registry-based work to online court appearances. Beforehand, “if you filed in Parramatta, you then had your matter dealt with at Parramatta forever, or Sydney or Newcastle. When COVID-19 hit, it was the first court that … went almost entirely digital, not only in a back [of] house file management sense, but also on the front line,” says McGrath.

Online hearings, and the nationalisation of the court, made it easier for judicial officers to hear matters from different locations, and improved access to justice, especially for those in the regions. “I could be a senior judicial registrar hearing an urgent matter in Sydney but one of the parties was in Tweed Heads and another was in Rockhampton, and the lawyer might have been in Brisbane,” McGrath says.

“[T]hat’s revolutionary for access to justice, particularly for regional, rural and remote practitioners and also [for] parties and litigants.”

According to the Federal Circuit and Family Court of Australia Annual Reports 2023-2024, in 2019, only 40 per cent of applications in family law were filed electronically, compared with 93 per cent in 2023-2024. 

Greater recognition and understanding of family and domestic violence

In the 50 years since the Family Court was established, understanding of family and domestic violence has greatly improved. The Court has introduced initiatives like the Lighthouse initiative, to screen matters for family and domestic violence. The pilot began in Adelaide in December 2020 and has since rolled out across Australia. When parties file an initiating application, they are asked to complete a confidential online screening, which is then assessed by a specialist team. Matters identified as having high levels of risk will be referred to the Evatt List, which is a specialist list for families at ‘high risk’ of family violence.

Family lawyers have seen first-hand the impact of early detection through Lighthouse. Katie Kelso, executive director of the Family Law practice at Legal Aid NSW, explains that specialised lists are particularly useful in identifying high-risk matters.

“[W]e have seen with the Evatt list and with the Lighthouse, a different … and a more appropriate pathway set up to try and manage those high-risk matters,” she says.

“I think the same can be said for all the specialist lists that the Court has established … like the Critical Incident List, as well as the Specialist Indigenous List … [They] are all examples of where the Court has recognised that certain cohorts or certain matter types require something quite different.”

Kelso says the expectations of how family law proceedings are run have changed since the merger. “[W]e went from having two quite distinct courts to one court and one set of rules,” she says.

“We also have a greater focus on the use of family dispute resolution or mediation options where it is safe … to try and move families through the system faster,” says Kelso.

While the legal profession and the Court have noticed a shift in matters settling outside the court or earlier in the process, there is recognition that matters are more intricate than ever before.

Chief Justice of the Federal Circuit and Family Court of Australia Will Alstergren tells the Journal the Court has perceived there is “a strong focus on dispute resolution within the courts before cases actually come to court, if it’s safe to do so. … [W]e’re doing a lot more internal dispute resolution which is helpful, however one of the things we’re finding is that cases are becoming increasingly more complex.

“The ‘garden variety’ of cases we get are certainly more complex than they used to be both from a parenting point of view and also a financial point of view,” he says.

The Chief Justice points out the Court is often required to deal with complex interactions between different areas of law, from corporations’ law and tax to succession. It may be required to deal with digital assets like cryptocurrency, complex trusts, corporate entities and other intricate investment strategies. “[P]eople’s transactions are more complicated. They’re not just a garden variety ‘house and car’ type of case. … So that makes a big difference,” he explains.

“Also looking at things like the complexity of coercive control … makes a big difference, whether it can be proven, how it’s proven and whether it actually substantiates. All these things make it much more interesting.” 

The Court is now required to examine the flow on or economic effects of domestic violence. “So, there’s a lot more complication in it than … five years ago,” explains the Chief Justice.

As society evolves, the Court must be malleable and resilient to meet the demands of the cases that come before it. As the Chief Justice observes,
“[t]he whole way we look at cases now has to be a lot more sophisticated than … before … so we’ve got to be much more relevant to the cases that are coming into our court. 

“I think the demands upon the courts now are not only in relation to complexity, but also how we treat litigants and how witnesses should be treated,” he says.

Specialist lists have changed how the Court deals with First Nations people, as has the work of Family Law Indigenous Liaison Officers.

“We have to be relevant to all Australians and all Australian families and part of that is to be relevant to people in regional and remote areas, to culturally diverse areas and obviously the First Nations people where sometimes the instances of family violence are much greater per head of population,” he says.

Kelso acknowledges the difficulties families face when trying to navigate the family law system. “[I]t’s inherently stressful and overwhelming. Until you have to go through the system yourself, you don’t really need to know a lot about how it works and often people’s knowledge about the system is based on someone else’s experiences,” she says.

Improved understanding of coercive control and family violence

For specialist services like Legal Aid and Women’s Legal Service, both at the frontline of family violence, there’s been a shift in people’s understanding of what constitutes coercive control and what falls within the ambit of family violence.

Amy Power, assistant principal solicitor at the Women’s Legal Service NSW explains there is still a tendency for clients to comprehend family violence as physical violence. “[W]e try, as a service, to take time and unpack things with clients … [I]f we ask a general question, ‘has there been family violence?’ they may say no but when we start to unpack it and give them some examples … they then start to realise and identify that there might have been family violence used against them,” she says.

But Power says there is still more work to be done. “[I]n culturally, linguistically diverse or migrant communities, [there is] a lack of understanding that sexual violence within relationships is … prohibited in Australia and that is a form of abuse,” she says.

A common thread between the family lawyers who spoke with the Journal is their observations regarding advancements in technology. Perpetrators of family and domestic violence are becoming more sophisticated in the way they exert coercive control and perpetrate further violence against former partners. Although harmful proceedings provisions were introduced in 2024 to prevent parties from using the legal system to perpetrate further abuse, practitioners still perceive the court and legal system being used to harm former partners.

Power says, “[w]e certainly see the court system being used as a way to continue further abuse. We call that ‘systems abuse’, and we’ve certainly seen that in our practice.

“[W]e’ve certainly seen in the work that we do that there’s times where the other [party] won’t comply with their duties of disclosure or they drag things out in that context…,” she says.

A common story from clients is how abusers weaponise the system. “We hear from clients that it is almost like a war of attrition that abusers use … they’re slow to respond or they write letter after letter
… to rack up legal fees … and if they are accessing private solicitors, those fees are very expensive, and they rack up very quickly,” she says.

As technology becomes more advanced, Family Law practitioners are also seeing an increase in tech facilitated abuse. A common scenario is perpetrators using Apple Air Tags, location apps and other services to keep tabs on their partners.

For practitioners like Kymberlei Goodacre, principal solicitor at Coffs Law and Legal Aid private practitioner, she is no longer surprised by how sophisticated perpetrators are becoming. “I’ve been practising for nearly 20 years and really there’s not much that doesn’t curl my eyelashes anymore,” she says .

Kelso has also witnessed a myriad of ways people perpetrate violence and when it comes to technology she says, “I don’t think it’s necessarily possible to get ahead but at least we can try to understand where technology and its capacity is at right now and be as responsive as possible.”

Physical and psychological safety of those who attend court

Gabrielle Craig, assistant principal solicitor and accredited specialist in Family Law at the Women’s Legal Service NSW, acknowledges there has been an increased and better understanding by the Federal Circuit and Family Court of situations where children have been exposed to family violence. She has noticed a greater recognition of the importance of having a safe arrangement for both the child and the mother or the person with the care and responsibility of the child. 

Having a greater recognition of family violence, including signs of trauma, can have an impact on evidence and storytelling as a family law matter progresses through the legal system.

The Chief Justice points out that judges undertake regular training and the Court has adopted a trauma-informed practice, especially those that have been impacted by family violence. 

Both Craig and Power acknowledge the improvement in the legal system in recent years but believe more could be done, such as improving the quality of family report writers and the availability of litigation guardians.

As Power tells the Journal, provisions were introduced in May last year regarding family report writers. She says while there are some great writers, that’s not consistent, and the quality of the reports can have a real impact on outcomes for clients. 

“The family reports are given a lot of weight and there’s no opportunity to test the evidence … until you get to a final hearing and cross examination … they’re a key tool used for negotiations. 

“[I]f there [are] deficiencies in the report, and it doesn’t deal with family violence appropriately or safely, then that can be really detrimental to the outcome of the case and could lead to unsafe outcomes,” she says.

Craig agrees. She stresses it is important for family lawyers to scrutinise the experience of the family report writers and whether they have the appropriate training and expertise. “Do they have the requisite expertise in family violence and sexual abuse? [Do] they have the right training say, for example, understanding of First Nations culture and issues so that those reports are culturally safe?” she says. 

Need for further reform

While the Court has greatly improved in the way they triage matters for family and domestic violence, family lawyers believe that more can be done to make the Court a place where people feel at ease. As Power says “there’s rarely a client that you come across that goes, ‘I love going to court,’ … and the thought of going to court can sometimes be a deterrent to some of our clients … accessing justice … [even if] the facts of their case might warrant a court application, she says. “They don’t want to go through that stress and that process.”

Although the court’s current case management model is to deal with matters within 12 months, Power admits she has yet to see a matter dealt with within that time frame. “They’re long and lengthy processes … you are before the court for numerous years and that can be very expensive for somebody paying a private solicitor,” she says. 

Furthermore, people usually seek assistance to make decisions about things happening in their lives and for their children. “[T]hat’s such a high stakes stressful environment so I don’t know if we’ll ever get clients feeling 100 per cent confident in going to court because you never know the outcome that you’re going to get…,” she says. 

Another barrier for families accessing the family law system is the time and cost involved. Since the early days of the Family Court, parties were encouraged, to the extent possible, to resolve disputes through conciliation. While alternative dispute resolution mechanisms are cheaper and often encouraged, family lawyers and the bench recognise that some cases should proceed straight to Court and a hearing. 

Recent legislative reforms have made it compulsory for parties to mediate before going to court, although certain exemptions apply. However, family lawyers agree that not all matters are suited to mediation.

Financial assistance and access to support services remain an issue for many families. Craig says that many of the women she encounters through the Women’s Legal Service are often in difficult circumstances and need the Court to intervene. However, most clients are not eligible for financial assistance. 

Craig says the priority for these women is to keep themselves and their children safe but without proper support, they have no option but to accept arrangements that are not safe for their children or themselves. “It’s a real risk to the system but particularly a real risk to children that there’s not adequate funding or support for that cohort of women,” she says.

Different case management pathways and dealing with unrepresented litigants

For family lawyers like Power and Craig, there’s a big gap in service provision for women to be able to access the family law system. Whilst parties are encouraged to resolve their disputes outside of the legal system, sadly, it is not always possible. 

The cost of litigation and going through the court system remain a barrier for most and for those with limited resources who lack eligibility for financial support, they are left to represent themselves.

Craig believes family law is a very difficult jurisdiction to self-represent in and where there are allegations of family violence or sexual abuse, the concern is magnified.

Family lawyers agree that although going to court has always been regarded as a “last resort” option, they have noticed a shift towards alternative dispute resolution as the preferred method of resolving family disputes, unless there are complex factors involved. 

McGrath acknowledges there has been a “gear shift” with the introduction of dispute resolution as a first step in the case management pathway. “[T]hat has changed the tone and the way that practitioners are practising by realising … there will be dispute resolution attempts at the beginning … but once all of those avenues have been exhausted, then we go to court and the litigation mindset really sets in,” he says.

Practitioners in this space agree that obtaining legal assistance at the outset can help the parties to identify the issues earlier and encourage them to resolve the matters at an earlier stage. There is consensus that the time it takes to resolve a matter will depend on its complexity, the reasonableness of the parties and their willingness to be pragmatic in their approach and whether they have legal representation. 

Where self-represented litigants are involved, Goodacre says it is common for matters to drag out. The Court wants to afford procedural fairness but there can be pressure on the parties involved to achieve an outcome. “[H]ighly conflictual matters need time to settle down … If you put more pressure on it, it can just blow it up even more, so it’s not a one size fits all jurisdiction,” says Goodacre. 

Online hearings have greatly improved access to justice for practitioners and parties, particularly those in the rural, regional and remote communities. They have also played an important role in ensuring the physical safety of parties, particularly where there are allegations of family and domestic violence. 

As Power explains, practitioners can email the Court and set up a safety plan for clients if they need to physically attend court. Parties are placed in different rooms and can appear by video link and while this offers physical safety to a party, it is unable to ensure the psychological and emotional welfare of that person and the protection is limited to the court premises. 

But family law practitioners have noticed a shift. “[T]he court is looking at not just [the] physical safety of mum and child, but also the psychological impact and safety, and what that would mean if mum [is] forced to come into contact with the abuser at each changeover…,” says Power. She explains that the Court will examine whether the mother’s psychological safety will be impacted by the thought of their child being brought into contact with their abuser and if the contact is detrimental to the mother’s ability to provide safe and stable care for the child, then it will consider whether ‘no time’ is more appropriate in the circumstances.

While online hearings can improve access to justice and reduce risks, Power points out that it can often come at the expense of the evidence. “[Not] just what someone’s saying in a witness box, but it’s also being able to read cues … and seeing them physically in a space,” she says. Power acknowledges that it can be detrimental to a client’s case to not have parties in the room and allowing the judge to see the full evidence.

For family lawyers, they often perceive matters drag out for two, three or more years and where evidence like family reports are required, the wait time can often be longer. “For instance, at some of the registries that we’re appearing in, the wait list to get a family report can be up to 12 months in and of itself. [T]here can be immense delays even just to get the evidence that you need,” laments Power.

Whilst Legal Aid and Women’s Legal Service help those who cannot afford a private solicitor, Power says there are not many free services available. “[W]e also try and fill a gap where there are people who can’t get Legal Aid and they don’t meet the means or the merits test, but they couldn’t afford to go private … but obviously we’ve only got capacity to help so many people. So, it’s a real barrier for clients,” she says.

Goodacre agrees that funding is an issue and emphasises that there are not enough Legal Aid lawyers in the regions. She points out that 70 per cent of legal aid services are provided by private practitioners and because the hourly rate and the funding available is too low, it is often not financially viable for private practitioners to provide that assistance. “[T]here is so much legal aid work in the regions, we don’t have the same level of affluence … [I]t’s difficult … for a regional person to find out who offers legal aid then secondly to actually find a solicitor that has capacity to take them on.”

Goodacre says it often falls upon the duty service or legal aid duty lawyer to fill in the gaps, however that is not a viable long-term solution for parties as people need legal assistance from the outset.

In the five decades since the establishment of the Family Court, the bench, and those who practise in this space, have had to adapt to momentous changes both on a legislative and social front. The Chief Justice points out the Court has a high percentage of matters that have been dealt with within a 12-month period and acknowledges the Court is striving to increase that rate. 

He hopes that people are able to move out of the system and get on with their lives within 12 months, without it being too costly as the two things people hate are delay and costs. “Many Australians go through a divorce. We are the people’s court in so many ways because normal people who may not have ever gone to court for anything else, find themselves in this court system.

“A great many of them settle by compromise, which is great and they own the results and they can accept the result and get on with their lives. The ones that can’t, we hope we can try and meet their needs, [in a] compassionate and fair way, but also in a way which doesn’t demand them [paying] disproportionate costs,” he says.

Looking to the future, the Chief Justice tells the Journal, “I think one of the things [that] we need to see is more information sharing between the state and federal courts … there’s no database of domestic violence orders.

“One of the things I’d love to see is smart forms which will help people get the evidence they need down in a coherent way, but that form could be used for a variety of different sources,” he says.

For experienced family lawyers like Brett McGrath, the challenges are well understood. He calls for practitioners to be agile and adapt to the changes. 

“Yes, you’ve got the emotional charge of the clients, their demands, their expectations, which you have to manage, to try and navigate them through, but then also keeping pace with the changes in the legislation, the rules and the structures of the court,” he says. “[I] think the family law profession; its resilience also comes from being collegiate.”

Despite its relatively short history, the Family Court has been through tremendous upheavals and changes including domestic violence, technology and more complex family and financial structures. 

While the future is unknown, the Court has demonstrated its ability to evolve to meet the needs of society. As the Chief Justice acknowledges, “I think we just have to be much more progressive …” to ensure the Court remains relevant to the people they serve.