By Daniela Faggionato and Catherine Hing -
Snapshot
- Family violence now has financial weight, and solicitors must identify and present evidence of economic abuse—like controlling finances or sabotaging employment—as courts now factor this into property settlements and spousal maintenance.
- New provisions allow courts to decide pet ownership in settlements, protect sensitive counselling records and impose costs for non-disclosure or procedural unfairness—making solicitor diligence more critical than ever.
- From updating intake forms to training staff on companion animal disputes, solicitors must adapt workflows to meet a range of new obligations and standards.
The Family Law Amendment Act 2024 (Cth) has brought in significant changes that reshape key aspects of family law practice. For solicitors, these changes bring new professional obligations and duties, broader risk considerations, and a more practical lens on how family law is applied in everyday matters.
The impact of family violence
Under amendments to section 75(2)(o) of the Family Law Act 1975 (Cth) (‘FLA’), courts are now required to consider the economic impact of family violence, including financial and economic abuse, when determining property settlements and spousal maintenance. Section 4AB(2A) of the FLA lists examples of behaviour that might constitute economic or financial abuse, including: controlling money, assets or superannuation; sabotaging employment (actual or potential); accumulating debt in the abusee’s name; unreasonably withholding financial support; coercing an abusee to give or seek money or agree to do things in connection with a practice of a dowry.
The court can only find family violence has occurred on the evidence before it. Consequently, solicitors must be more attuned to subtle forms of coercive control and ready to present evidence that may not be captured in traditional financial documents.
When dealing with the client, solicitors must ensure they seek instructions on whether family violence has occurred and consider any current or future economic impact of family violence so that proper advice on property settlements can be provided. If there is evidence of family violence (within the meaning of s 4AB), then solicitors ought to include family violence considerations in their advice, preparation of evidence and submissions.
When taking instructions for the preparation of affidavits that include allegations of family violence, solicitors ought to bear in mind their professional obligations and:
- ensure a sufficient evidentiary basis exists for the alleged family violence (rules 21.3 and 21.4 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (‘Conduct Rules’));
- exclude any information in an affidavit the solicitor knows to be untrue, as findings that a solicitor has prepared an affidavit containing false statements can constitute professional misconduct (see e.g. Council of Law Society of New South Wales v Renfrew [2019] NSWCATOD 63 and Legal Services Commissioner v Yakenian [2019] NSWCATOD 98);
- ensure affidavit evidence prepared is not false, misleading and is properly verified (rule 19 of the Conduct Rules);
- ensure the client understands the seriousness of making allegations of family violence, the need for truthful and accurate evidence, and the risk of adverse credibility or costs consequences if the court finds the evidence is untruthful;
- ensure family violence allegations are not made simply to gain a tactical advantage or to discredit the other party; and
- if the client insists on including an unfounded allegation, the solicitor ought to consider ceasing to act.
Disclosure obligations
Parties’ ongoing financial disclosure obligations in family law proceedings have been incorporated into section 71B of the FLA. Parties must continue to provide timely, full and frank disclosure of relevant financial information from the start of proceedings until the proceedings are finalised.
Solicitors must ensure clients are advised of, understand and comply with these obligations, including the possible consequences of non-compliance.
Companion animals
Under section 65S of the amended FLA, the court can now make orders regarding ownership of companion animals (i.e. pets) in property settlements, including that: either one party has ownership (section 79(6)(a)); the pet is to be transferred to another person who has consented to the transfer (s 79(6)(ab)); or the pet will be sold (s 79(6)(b)).
Solicitors should advise clients of the limited range of potential orders and of the risk the court will order pet ownership to the other party (i.e ex-spouse), noting an order of co-ownership cannot be made. They should also obtain supporting evidence of the factors set out in s 79(7) relating to the care and emotional connection to the companion animal/s, which will inform the court’s decision.
Solicitors must be more attuned to subtle forms of coercive control and ready to present evidence that may not be captured in traditional financial documents.
Protecting sensitive information
Under part XI, division 1B of the amended FLA (‘protecting sensitive information’), parties can take steps to prevent access to evidence of ‘protected confidences’ that otherwise would be required to be disclosed (e.g. produced under subpoena) (section 102BC).
As per section 102BA, ‘protected confidence’ is a communication made in the course of a professional relationship (e.g. with a counsellor or specialist family/sexual violence service) where the confidant is under an obligation not to disclose the communication (refer to section 102BB for the definition of a professional service).
In response to any subpoenas issued in family law proceedings, solicitors should consider making enquiries about whether the documents sought or produced under subpoena might potentially contain evidence of ‘protected confidences’ and whether disclosure would result in any harm. If so, solicitors should then consider whether an application to prevent disclosure is warranted.
Costs orders
Section 117AB of the amended FLA clarifies the court’s discretion to award costs where a party has failed to comply with obligations, such as disclosure or procedural fairness. Solicitors must consider and advise clients about the potential costs consequences of non-disclosure or unreasonable conduct to avoid problems down the track.
Information/documents to be provided to clients
Under section 12E, solicitors must provide clients who are considering initiating proceedings under the FLA with specific information, unless they reasonably believe the client has already received it.
Under s 12E(1), solicitors must give clients the information prescribed in section 12B about non-court based family services, and court processes and services.
Under s 12E(2), solicitors representing a married person who is a party to divorce proceedings, or financial or part VII proceedings must give clients information prescribed under section 12C of the FLA (information relating to services available to help the parties with reconciliation) unless the solicitor considers there is no reasonable possibility of a reconciliation between the parties.
To comply with their obligations under s 12E, solicitors should enquire whether clients are aware of the information contained in ss 12B and 12C and, if not, ensure this is provided to clients.
General practice management tips for solicitors
To help navigate these changes and in addition to the specific recommendations already mentioned, here are some practical tips for managing your practice under the new regime:
- Update client intake forms: include questions that help identify potential economic abuse or financial control early in the process. This will support better preparation and evidence gathering.
- Review disclosure protocols: ensure your firm’s processes for collecting and updating financial information are aligned with the new ongoing disclosure requirements. Consider implementing checklists or automated reminders.
- Train staff on companion animal matters: educate your team on how to approach pet-related disputes with sensitivity and legal clarity. This may involve new client interview techniques or precedent development.
- Secure sensitive data: revisit your data protection policies, especially those related to family violence cases. Make sure your systems and staff are equipped to handle confidential material securely and ethically.
- Document non-compliance: keep thorough records of any delays or failures by the opposing party to meet obligations. These can be critical when seeking costs orders.
- Communicate clearly with clients: explain the implications of the amendments in plain language. Clients who understand their responsibilities are more likely to comply and less likely to face adverse outcomes.
Note: the amendments apply to all new and existing proceedings from 10 June 2025, unless a final hearing has commenced.
