This Week in Family Law

Ep 11: Is the family law system broken or just misunderstood?

• LEAP Family Law • Season 1 • Episode 11

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0:00 | 25:06

In this episode of This Week in Family Law, we explore key family law updates in Australia, including a survey for the evaluation of the Family Law Amendment Act 2023 and an article on the successful court dog program that has been trialed across 11 NSW courts.

In Law in Motion, we explore public perception that the Family Law system is Australia is broken and how lawyers can help clients understand the reasoning behind the outcomes of their matters.


Chapters:
0:00 - Introduction
0:45 - What's Up? - Updates in Family Law for this week
5:54 - Law in Motion - Is the System Broken?
18:23 - Your Questions Answered


Disclaimer: This podcast is intended for general information and discussion purposes only. It does not constitute legal advice, and should not be relied on as such. The views expressed are general in nature and may not apply to your specific circumstances. You should seek independent legal advice before acting on any information discussed.


About the podcast:
This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.


Topics covered in this episode:
- Family Law Amendment Act 2023 Survey
- Court Dog program in NSW 
- Grandparents supporting their adult children in Family Court matters
- Third Party Review of Backlogs in the Tasmania Court System 2026 
- FCFCOA outcomes
- Educating your clients about their outcomes 
- Using AI in Family Law Matters
- Explaining use of AI to clients
- Criminal law 
- Domestic violence allegations
- Initial client interviews



Links:
Evaluation of the Family Law Amendment Act 2023 (Closes 30 June 2026)
https://survey.confirmit.com.au/wix/p338993664621.aspx

Court Dog program across 11 NSW courts has been a success
https://www.abc.net.au/news/2026-04-04/companion-dog-program-nsw-courts-guide-dogs/106465000

Grandparents risking financial security to support adult children in Family Court matters
https://www.abc.net.au/news/2026-02-02/grandparents-assisting-adult-kids-financially-in-family-court/106208516

Third Party Review of Backlogs in the Tasmania Court System 2026 – Open for Public Consultation
https://www.lst.org.au/third-party-review-of-backlogs-in-the-tasmania-court-system-2026-the-review-open-for-public-consultation/



Submit a question or provide feedback:
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YouTube: https://www.youtube.com/@LEAPAu
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SPEAKER_00

Welcome to This Week in Family Law, the go-to podcast for busy Australian family lawyers who want to stay updated without the overwhelm. I'm Jenna Downey, and my co-host today is Brendan Chu. And Brendan's just come back from Japan. How was it?

SPEAKER_01

It was great. I ate a lot of food, went and watched the Formula One race there as well. I'm pretty sure I put on a few kilos. But it was beautiful seeing all the cherry blossoms in spring.

SPEAKER_00

What's the weather like there at the moment?

SPEAKER_01

Oh, it's lovely. It's about 20 degrees. Just mostly mostly comfortable and nice and sunny.

SPEAKER_00

Excellent. I'm glad to have you back, but I'm glad you also had a good trip.

SPEAKER_01

I'm glad to be back.

SPEAKER_00

Let's get into this week's updates. What's up, Brendan?

SPEAKER_01

Thanks, Jenna. On the 7th of April, the Family Law section announced that the Law Council of Australia has engaged researchers from the University of New South Wales to study the Australian legal profession focusing on attrition, retention, and engagement for various groups of lawyers working in private practice, in-house, government, and community legal centres, which of course includes family lawyers. And so the results of this study will help highlight what more needs to be done to support lawyers in practice and what more needs to be done to help them thrive. And of course, this survey closes on the 24th of April. So if you want to have your say, I highly encourage you to take part in that survey.

SPEAKER_00

It's a good survey to undertake and to get more of an understanding as to those particular issues that practitioners are having to deal with.

SPEAKER_01

Definitely.

SPEAKER_00

I hope they implement some of the feedback that they do receive from the survey. I also have another update from the family law section. This is a family law-specific update asking for practitioners who are working in family law to provide to complete, sorry, a short online survey with the option of a follow-up in-depth interview. The researchers of the survey are from ANU, the Polis Centre for Social Policy Research, and they've been commissioned by the Attorney General's Department to evaluate the Family Law Amendment Act 2023. They're looking at how the reforms are working in practice with a particular focus on parenting outcomes and child safety, the best interest framework and compliance or non-compliance of orders as well, and also experiences of systems abuse in family law, too. The evaluation aims to wrap up by the 30th of June this year. So there's a few months for practitioners to take part. And I'd highly encourage people to also share their voice in this survey because it will hopefully help to inform any further changes, I suppose, but then also show how the reforms are playing out on the ground too.

SPEAKER_01

Absolutely. I think the reforms have impacted practitioners across various levels of experience very differently as well, of how they conduct their day-to-day work, how they carry their matters. And I know a lot of firms have implemented things where they, for example, when the amendments first came into effect, they gave clients brochures to explain the differences in the before and the after, um, and various other things that they would have done to help manage the transition between the previous iteration of the act and what it is now. So it'd be interesting to see what practitioners say, what how it has impacted them in their carriage of their matters.

SPEAKER_00

And I'm hoping that they'll release some sort of a report or a consolidation of the feedback, at least, that has been given.

SPEAKER_01

Yeah, I agree.

SPEAKER_00

To inform what they might be doing doing about it. Yeah. And our final update is on court dogs. The ABC published an article called Court Dog Success has handlers calling for more volunteers. And the article goes on to say that a joint initiative between Guide Dogs Australia and the New South Wales Department of Communities and Justice work on a program called the Canine Court Companionship Program, which places therapy dogs, or which has placed therapy dogs and trained handlers at 11 courthouses across New South Wales, mostly in regional areas, to support victims of crime through the court process. And the program has been running since 2013, which I actually found interesting to hear because as we know, the family court, it's been more recently in the last couple of years that it did start with a pilot program. And then we're based in Sydney, so in Sydney more recently, only last year. But going back to 2018, they've been trialing this program, they've been trying this program, sorry, and it seems to be working really well. And the call is for more court dogs and more volunteers to be at the Orange Courthouse to help expand the program because there's a big demand for the dogs.

SPEAKER_01

Yeah, well, it's actually quite interesting for me to hear that uh the Court Dogs program has been around for so long. Um, because as you mentioned, Jenna, it really only came into effect for us in the Federal Circle and Family Court uh in the last two years or so. Um but clearly there's been some success at varying levels, so it'd be really good to see this more widely adopted, not just on this side of the country, but also around Australia as well, more broadly.

SPEAKER_00

Yeah. Who doesn't like to see a dog in court?

SPEAKER_01

Maybe people who are allergic.

SPEAKER_00

Maybe those people. For most people, I think it'd be great in comfortable. But for most people, it would be effective. Thank you, Brendan. And that's what's up for this week. For Law in Motion this week, Brendan is going to talk to us about a topic that he did a video on for TikTok and it addresses whether or not one parent is favoured in family law proceedings. It seems to be a quite controversial topic, which saw hundreds of comments on that video with people sharing their views as to whether or not mothers or fathers were favoured in their proceedings. And we're going to play that video for you now.

SPEAKER_01

Do courts really favour mothers when it comes to children? One of the biggest myths in family law is that gender determines parenting arrangements. Family law in Australia is gender neutral, which means the courts and judges don't care whether you are mum or dad. They care about what's in the best interest of the child, their needs for stability and safety. None of this translates into mum wins. So let's leave this myth behind. What do you think? Let us know in the comments. And they definitely let us know in the comments. There were hundreds of comments to that particular video. Um and so there clearly is a bit of a sentiment, Jenna, I think, from individuals who have been through the system. Um so maybe there's more I think practitioners can do, or perhaps think practic things that practitioners can do better to help temper their clients' expectations before they get to final outcome at the very end of the process. Um, and this has actually been something that I've been thinking about quite a lot since leaving practice because I've then had the opportunity to actually take a step back and look at the family law system as a whole and from a more holistic perspective. Um, and I've also had the chance to speak to a lot of other practitioners about many things, one of which is how they are managing their clients' expectations throughout the life of a matter. And a common thing I hear from practitioners or even see on directly on social media, as we just saw in that clip, um, or on forum posts or in news articles, is that the family law system is broken. Um, and depending on who you ask, you will get very different answers and responses to that particular question. Um, but in my view, it's not broken, but rather it's misunderstood. And it's easy to see why. From a client's perspective, um, their outcomes can be unpredictable and unfair, but in their eyes, of course. But that doesn't necessarily mean the system's broken. It may mean that we as practitioners just need to spend more time managing our clients' expectations. So picture the scenario, right? Um, I'm sure we've all had this experience or something similar. Your client walks into your office for the first time and they start saying things like, I was the better parent, so the children should live with me, or uh, they cheated, so they should get less, or I worked while she stayed at home, so she can't touch any of my super. Um, and these expectations, they don't just come out of nowhere. Uh, they're shaped by things like friends and family, like, oh, I was down at the pub with my mates the other week, and a few of them have been through the same thing, and they said I should get this, or online advice from platforms like ChatGPT, which I spoke about in a previous episode. Um, and of course, media narratives as well. Um, like I know Antonia's covered a few of these um in the past regarding celebrity divorces, and they're often extensively covered, which can shape the perception of the family law system on an individual basis as well. And so by the time our clients actually come to us, uh their vision of what is a fair outcome is already set in stone. And as we know, what our clients see as being fair doesn't necessarily align with what the family law system says. And so when the end result doesn't match their vision of fair, it feels like to them that the system is broken. And then that leads clients to leave bad feedback about their former solicitors, making complaints about their lawyers, venting on social media and so on and so forth. And so that got me thinking, well, what can we as practitioners do or do better to tackle this problem? Well, first and foremost, I think, you know, our role involves obviously tempering our clients' expectations right from the beginning when they first sit down with us, all the way until the very end of their matter when they've reached an outcome or a resolution. Um, but one thing to keep in mind, I think, is that we as family lawyers, we're not just advocates, but we're also interpreters and educators about the family law system to our clients. So as we know, family law, it's many things. It's discretionary, it's not formula-driven, it's evidence-based and not based on emotional fairness. There are cost barriers and accessibility issues for some litigants who do not have access to funds to pay legal fees. And it's definitely not a justice and retribution system. And so I will start from the very beginning, very early on, that managing my clients' expectations throughout the matter is just as important as giving correct legal advice. So here are some of the things I did, and hopefully this will help some of our listeners. Um, some of the things I did to help temper my clients' expectations throughout the life of Matter is that I would always start my first meeting with my client by saying something on the lines of, I'm here to give you advice. Some of the advice I'm going to give you might not be what you want to hear, but it's what you have to hear. I'm here to reality test what you tell me. And if I don't, if I do that, it doesn't necessarily mean that I don't support you. It just means I'm trying to explore ways to achieve some, if not all, of that outcome that you are seeking. I would then go on to explain things like discretion, no fault divorce, best interest of the child, and of course the four-step process for property division as well. Throughout the life of the matter, I would never give guarantees or promises in my advice because I'm not the decision maker at the end of the day. And when I did give advice, it would be in the form of a range where possible, with an in-depth explanation as to how I came to that conclusion rather than just telling them this is what you're going to get. And to further this point, giving updated advice throughout the life of the matter as new circumstances or as new evidence comes to light. And because family law is, of course, very dynamic, a lot of things can change from the first day a client comes to see you all the way into the very end of their matter. And so it's important for us to continually be updating our advice to the client as time goes on. And of course, I would always acknowledge the fact that the system is not perfect. It's not broken, but I would acknowledge that the system has some structural limitations built into it rather than just outright dismissing my client's concerns. And I found that that always helped build trust with my clients because they they would see me as go as as understanding their struggles and their viewpoints as well. So that's something that I can give to practitioners as a bit of a tip.

SPEAKER_00

It's so important to have those, let's say, difficult conversations with the client. But before you have that, I love the preparatory statement that you would make to your clients about this is my responsibility to be able to provide you with this advice. And I fully support you and I'm acting for you and your case, but it's m my job to do this. That's right. And setting up the parameters of okay, this is a safe space. I need to give you this information so you can take away what you will. Yeah. But if I don't do this, then I'm not really doing my job right and giving you the right advice. That's right.

SPEAKER_01

I'm not doing good by you if I'm not giving you the advice you need to hear. And that always formed part of my sort of housekeeping at the start of a matter, at the start of an initial consult with a client.

SPEAKER_00

And it does relationship build too, as you're saying. That's right. Because they feel they can trust you to give the right information and then be very upfront with them. But doing it in a very diplomatic way.

SPEAKER_01

Yeah, that's right. And that that trust building with a client is it's a difficult thing to do, depending on the nature of your client, their personality, um, but it's something that needs to be done for every type of matter. Otherwise, you do end up with clients who walk away thinking they've been hard done by the system or that the system's broken or it's designed to assist one gender over the other. Um, and so I think I want to wrap up by reiterating the fact that the family law system's not broken. It's definitely not perfect, but it's not broken. Um, and for family lawyers, one of the most valuable things is not just to advocate, but to educate as well.

SPEAKER_00

Yeah. So important. And what the what if you had a solicitor say to you, Oh, I just don't have the time to have those conversations with my client, or I'm just so busy, I just don't think to do it. I think we can agree that it's so important to have those conversations that it probably would save some time in the end in a way.

SPEAKER_01

Oh, absolutely.

SPEAKER_00

And save will meet the expectations of your client.

SPEAKER_01

Yeah, well, even just from like a business reputation perspective, the last thing you want is a disgruntled client saying, Oh, I was I engaged a horrible lawyer who who didn't get the outcome I wanted, um, where in reality the outcome that they got was just an equitable, but their expectations just weren't managed throughout the life of a matter. So um lawyers who do find themselves quite time poor, which is completely understandable, still need to take steps to make sure their clients' expectations are met. Otherwise, there could be potential reputational damage from from a from a layperson's perspective on that particular firm as well.

SPEAKER_00

And just going back to the TikTok, there were obviously a lot of comments made, which we mentioned before, but I just want to get your comment on one of the thoughts that someone did post. And it says, this is so not true. If it were the norm, it would be 50-50.

SPEAKER_01

Yeah, that's an interesting comment. Um, and certainly that echoes some of the sentiments that I mentioned very early on in this segment as well. Um, look, I think one of the biggest misconceptions here is that statistics focus solely on the fact that the outcome is what it is, where in reality um they're shaped by the circumstances of each individual relationship. Um, and often the statistics are the way they are because just that's just how the parents shaped their roles in the relationship when it was still intact. So traditionally it's mum going and parenting the children, taking them to and from school and to activities where dad works a nine to five job. That's still very much the sort of norm in society. And of course, I appreciate the fact that we have shifted uh somewhat away from that. But in historically speaking, that's still very much uh the traditional uh roles the parties play during the relationship. And just because a separation happens, it doesn't mean that dad can suddenly pick up the kids from school when mum has been the one doing that because he's still got a nine to five job. He can't leave work at three o'clock in the afternoon to pick up the children or arrive at work late in the morning because he had to drop the kids off. He still needs to be at the office at nine to five, sometimes even outside of those hours. So again, it falls back to what's practical and what's going to work and be in the best interest of the children in order to make any final parenting arrangement work. And often that just means that mum who has historically been the primary care of the children and continu and can continue to be in that role, who is the one who's going to continue doing that until the kids are old enough to get themselves to and from school and what we call vote with their feet and decide, well, today I'm going to be at dad's place or today I'm going to be at the mum's place. So to those clients who who come to lawyers with that sort of sentiment, my best advice for them to be it would be to do what they can as a parent to continue to have a relationship for their children, with their children, because when it comes time for them to be old enough to vote with their feet, they will eventually spend time with you more than what the orders potentially say.

SPEAKER_00

And also for the for the lawyers where you have clients come in to see you and they say they want equal time, but then they say, Oh, but I'm I actually work this many hours a week or I travel a lot for work. Reality testing what those arrangements would actually look like and how would they facilitate that time.

SPEAKER_01

That's right. That's right. Reality testing, going back to what I mentioned earlier, is such an important thing that we have to do for our clients to help manage their expectations. And again, building that relationship with your client by saying, look, by reality testing you, I'm not taking a position that's adverse to what you want, but I'm just trying to find ways to achieve some, if not all, of that outcome.

SPEAKER_00

I like how you put that. Thank you so much, Brendan. That's been so informative and very educational, I'm sure, for a lot of lawyers. For your questions answered this week, we have two questions. And the first question I'm going to ask Brendan, and it and it is from Sarah. I've started using AI in my matters, but I'm concerned a client will find out and question me on this. When and how do you disclose the use of AI to clients?

SPEAKER_01

Thanks for the question, Sarah. Look, I think the bottom line is that it's important to disclose the fact that AI can at times be used by your firm. But the conversation really should center around the efficiency gains that the use of AI brings to your clients' matters. Because, in the end of the day, AI is technology that's been designed to assist you as a lawyer to do your job better. And it does not, in my view, differ from existing, what I call more traditional technology, like practice management software, like Microsoft Office or legal research databases or transcription and dictation software, in the sense that the motivation behind the use of each of these pieces of technology is that it's there to save time. And so the key element with all this technology, AI included, is that you as the lawyer are responsible for the final output, not the technology. So, in my view, if you're not going already to great lengths to tell your client that you use whatever practice management software you use, or you use Microsoft Office, or you use this particular software, or you use a computer or this brand of computer, then you really shouldn't have to give an exhaustive list of all the AI tools you are using to your clients. But to, or on the side of caution, I would just say to my client at the beginning that there may be times I use AI in your matter to keep things moving. It'll mean that things happen quicker and it'll be more cost effective for you as well. And if you really wanted to take it one step further, you could maybe give your client the option to do things the traditional or the manual way without the assistance of technology, but highlight the fact that it would cost them more and it would take longer to get to an outcome.

SPEAKER_00

And then I think it's a no-brainer, isn't it, for clients as to what option they would choose in that instance?

SPEAKER_01

That's right. Clients don't come to us and say, I want you to hand write all these notes and don't type on a computer. So it would probably be the same thing.

SPEAKER_00

Thank you.

SPEAKER_01

And so we do have another question as well this week from David. Um his question is what red flags should lawyers watch for in initial client conferences when there have been allegations made against your client for domestic violence?

SPEAKER_00

I found it quite interesting that this that this question came up. And I spoke to one of my colleagues who is a criminal law solicitor to be able to give some insight into what family lawyers should look out for when they are that when they have a client where allegations have been made against them, because I feel like that that can really give a good perspective on behaviours of potential alleged perpetrators. And she highlighted some red flag behaviors that family lawyers could look out for. And one of those was erasing the other party's contributions, so particularly financial contributions, where they would refuse to credit them with anything positive during the relationship. They may say things like, I paid for everything during the relationship, it's my money, and she didn't work, so she shouldn't receive any of my superannuation or those type of comments. Describing controlling conduct, so they might say that they have been looking at their partner's phone and they could say it relatively innocently, but that could also be another red flag, or even suggesting that they're dictating who the other party can speak to. And they might again say it in a very subtle way, but that's really what they're actually doing. Victim blaming with no insight. Which can which would mean that there's they they've got no, I suppose, self-reflection of the incident. So immediately attacking the victim and blaming them for what has occurred and denying any wrongdoing during those events, to saying that there are some genuine cases where there might be allegations that are completely false. And you could have someone denying those allegations. So I think it is a bit of a fine line there. But at the same time, if they're if that person's displaying multiple red flag behaviours, then perhaps they're not that that isn't the case and it might be another situation. Partial admissions wrapped in justification, even when acknowledging something occurred, immediately minimizing or reframing it as provoked or unreasonable. And weaponising the children, in other words, positioning the children as a potential witness to the other party's behaviour or suggesting that the child knows what the other party is doing and really bringing them into the matter. The green flag behaviours as well. So these are the things that if you also looked out for, then you would show a genuineness, I suppose, in what your client is saying to you. And that's things like genuine insight and able to reflect unprompted on how the incident came about or their role in an incident or multiple incidents. Authentic remorse and acknowledgement that something went wrong, and not remorse as in I'm putting this on for my lawyer, but genuine remorse. Proactive engagement with support services. So they might already be getting counselling or seeing their GP or speaking to a therapist, for instance. And finally crediting the other party genuinely. So despite the conflict that is going on, being able to acknowledge the other party's positive qualities. For example, she was a genuinely good mum. She was a really good mum, or she gave up work to allow me to work in my business. Those kind of comments, they're generally green flag behavior.

SPEAKER_01

Yeah, it's good to hear both the red flag behavior and the green flag behavior because of the clear intersection, I think, between family law and criminal law. So all these tips are no doubt going to be very helpful for our listeners when they are conducting meetings with their clients and trying to, I guess, triage for family law issues or potential family law issues that are perhaps hidden behind some of the stories that are being told to them by their clients.

SPEAKER_00

Exactly. We've loved being in your ears this week. Please remember to like, subscribe, and share this episode so this podcast can get in front of more people. If you have any questions or feedback, please email us or send us a message on YouTube, TikTok, or Instagram. Stay tuned for next week's episode. New episode drops every Monday.