Recent Changes to the Family Law Act – Domestic Violence now a Consideration in Financial Cases

Background

Since the introduction of the Family Law Act in 1975, the conduct (or ‘fault’) of parties to the marriage or de facto relationship has largely been irrelevant to the determination of their property settlement (i.e. the division of their assets, liabilities, superannuation and financial resources after separation), unless there were exceptional circumstances such as the deliberate wastage of assets or, in limited cases, domestic violence.

On 10 June 2025, however, significant changes to the Family Law Act 1975 (“the Act”) came into force, so that the impact of family violence in the relationship is now a consideration for the determination of settlements.

These amendments apply to all proceedings commenced from 10 June 2025, as well as to any cases that started before 10 June 2025 but have not yet finally determined, except where the final hearing is already underway.

The changes – how are property settlements decided now?

The legislation now provides that the court must consider whether it is just and equitable to make any order adjusting the parties’ property interests. This consideration (i.e. whether it is just and equitable to make an order at all) permeates the entire decision-making process, which involves the following 4 steps:

1. Identify the legal and equitable rights and interests of each of the parties in any property (this includes superannuation) and liabilities.
2. Take into account the following considerations:
   1. 1. The parties’ respective financial and non-financial contributions;
      2. The parties’ respective contributions to the welfare of the family;
      3. The effect that any family violence had on the ability of the victim/survivor party to make their financial/non-financial and homemaker/parenting contributions;
      4. The effect of any proposed order on the earning capacity of either party to the marriage;
      5. Any other order made under the Act affecting a party to the marriage or a child of the marriage;
      6. Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided for a child of the marriage.*Note – where the Court is making an Order that concerns a pet of the parties (called a “companion animal” in the legislation, there are separate considerations, which you can read about here: Pets and the Family Law Act.
3. Consider the current and future circumstances of the parties (these considerations now include the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the current and future circumstances of the other party); and
4. Allocate an overall percentage entitlement to each party, based on their contributions.

Kennon & Kennon

Prior to the recent amendments, the principles established in the Full Court case of Kennon & Kennon (1997) FLC ¶92-757 and subsequent cases set out the limited circumstances in which domestic violence might impact the outcome of a property settlement application.

In Kennon, their Honours Fogarty and Lindenmayer JJ formulated the principle as follows:

“where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions…” ¹ .

They also observed that “It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.” ²

The recent amendments and family violence

The amendments in the Family Law Amendment Act 2024 have made the following significant changes
to enable greater consideration of the economic consequences of family violence:

Family violence definition

The definition of family violence within section 4AB of the Family Law Act now more clearly recognises economic or financial abuse as family violence by:

1. moving existing examples of economic or financial abuse into a stand-alone provision;
2. expanding an existing example on unreasonably denying financial autonomy; and
3. including new examples of dowry abuse.

Contributions

Family violence is now a specific consideration when assessing the parties’ contributions. Specifically, the court will consider the effect of any family violence to which one party has subjected or exposed the other party, on the ability of a party to make financial or non-financial contributions or contribute to the welfare of the family.

Current and future circumstances

When considering the parties’ current and future circumstances, family violence is now a specific consideration. In this regard, the court will consider the effect of any family violence that a party was subjected or exposed to, on their current and future circumstances. For example, a physical or mental health issue resulting from family violence which impacts on a party’s ability to work.

Spousal maintenance

In a spousal maintenance application, the effect of family violence is now a specific consideration, when the court is deciding what order may be proper in the circumstances of the case.

Companion animals

Under the Family Law Act, animals owned by parties to the relationship are treated as property. You can read more about the recent legislative changes in relation to pets here. Insofar as domestic violence and pets are concerned, the amendments add a framework for dealing with family pets (“companion animals”) in property cases, and insert a list of factors the court must consider for orders dealing with a companion animal, including:

1. any family violence to which one party has subjected or exposed the other;
2. any history of actual or threatened cruelty or abuse towards a companion animal;
3. any attachment by a party or a child of the relationship to the companion animal; and
4. the ability of each party to care for the companion animal in the future.

Takeaways

The recent changes to the Family Law Act are significant and are underpinned by a deep recognition of the wide-ranging impacts of domestic and family violence in separating families, including the economic consequences.

The impact that family violence will have on the determination of property and financial matters in a particular case will depend on the specific facts of the case. Anyone seeking to have the economic consequences of these matters considered will need to provide persuasive evidence to the Court of both the incidence of family violence and the connection between that violence and the ability of a party to make relevant contributions and/or on their current and future circumstances, and should obtain specialist Family Law advice before preparing that material.

How we can help

As specialist Family Law solicitors, we are highly experienced in dealing with the financial issues arising from the breakdown of relationships, including where the parties have been and/or are continuing to be impacted by family violence. We can provide you with realistic and practical advice regarding your situation and assist you to develop a case strategy to maximise your prospects of success.

If you have experienced family violence and are separating or thinking of separating, reach out to O’Reilly Shaw Lawyers on (07) 3236 4504 or at [email protected] for a discrete and confidential meeting about where you stand and how we can help.

¹ Kennon & Kennon (1997) FLC ¶92-757  at p 84,294
² Kennon & Kennon (1997) FLC ¶92-757  at pp 84,294–84,295