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Kaylee Neil, Menzies Foundation Fellow for the UN Commission on the Status of Women
Executive Summary
Family and domestic violence (FDV) is a leading cause of poverty and homelessness among women and their children in Australia (Homelessness Australia, 2024). Obtaining a just and equitable property settlement is often the difference between poverty and financial independence in the immediate aftermath of separation. However, exorbitant legal fees and lengthy family law proceedings dissuade women from seeking settlements. This paper recommends that the Australian Government invite Legal Aid Commissions (LACs) to apply to deliver family law arbitration services over a two-year trial period, with the aim of expediting settlements and alleviating pressure on the Federal Circuit and Family Court of Australia (FCFCOA).
Problem Identification
Gender cannot be overlooked when discussing family and domestic violence (FDV). While it is important to recognise that anyone (regardless of gender) can experience violence, women continue to be disproportionately affected by FDV in Australia and across the globe. The risk of a woman experiencing FDV is also heightened by intersecting factors such as race, sexuality, disability, and mental health (AIHW, 2023). In Australia, over 1 in 4 women have experienced FDV since the age of 15 (ABS, 2023). Between 2022 and 2023, one Australian woman was killed every 11 days by a former or current intimate partner (AIHW, 2023).
Securing financial autonomy for women following separation is crucial for achieving gender equality and preventing the cycle of violence. However, the Australian Council of Trade Unions (ACTU) estimates that it costs an average of $18,000 to leave a violent relationship (ACTU, 2023). Approximately 45% of women seeking assistance for homelessness identify violence as a cause (Homelessness Australia, 2024). When asset division occurs, women who have experienced family and domestic violence are more inclined to accept unfair property settlements and are three times more likely to receive less than 40% of the asset pool (Parliament of Australia, 2017).
The stress and trauma associated with navigating the legal system often takes a significant psychological toll on families. When women fear the legal system will not provide adequate protection or remedies, they are more likely to be discouraged from pursuing a settlement, thus often remaining financially dependent on an ex-partner (Parliament of Australia, 2017).
The cost and duration of finalising a property settlement varies significantly depending on the extent of negotiations required and whether the matter is settled by consent (without the need for judicial intervention). In addition to the cost of legal representation—wherein solicitors and their counsel may charge hundreds or even thousands of dollars an hour for their services—parties must also meet the costs of valuations, dispute resolution services, and Court filing and administrative fees. As highlighted by FCFCOA Chief Justice William Alstergren:
"Costs in family law litigation are often disproportionate to what they are fighting over. It is not unusual for people to spend 20, 30 or 40% of their worldly assets on fees – and they have not even gone to trial." (ABC News 2023)
The demand for cost-effective legal services far exceeds available resources. While 13% of Australians live in poverty, just 8% are currently eligible for legal aid assistance (National Legal Aid, 2023). According to the Justice on the Brink report commissioned by National Legal Aid (NLA), Legal Aid Commissions require an additional $484 million in funding to prevent immediate supply failure and improve means testing.
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The views and opinions expressed by Global Voices Fellows do not necessarily reflect those of the organisation or its staff.