A Time of Change in the Family Law System
29th March 2018
By Belinda Viset & Lisa Wagner
Our experience tells us that clients are very concerned about delays in accessing justice, especially when it can take years to reach a Final Hearing in the Family Law Courts. Our clients also tell us that the Family Law system is difficult to navigate and that its existing processes do not always meet their needs.
The passage of the Family Law Act in 1976 by the Whitlam Government was a radical change in itself 42 years ago. For example, as part of the legislation, a Divorce system was introduced where it was not necessary to prove whose fault it was that the marriage ended. This was a major change because in the past it was often necessary to hire private detectives to obtain proof of adultery, in applicable cases.
Despite how radical the Family Law Act was in 1976, it has not undergone a comprehensive review and it is timely that this occur to take into account the changing needs of Australian children, married couples, de facto couples and their families in a very different social, political and economic landscape to 1976.
On 9 May 2017 the Turnbull government announced that it would ask the Australian Law Reform Commission (“ALRC”) to do the first comprehensive review into the family law system since the commencement of the Family Law Act in 1976.
The timeframe for the ALRC to report to the Attorney General is 31 March 2019.
In terms of reference material, the ALRC is directed to look at existing reports about the family law system, to include surrogacy, family violence, access to justice, child protection and child support. It also is to look at reports about interactions between the Commonwealth Family Law System and other fields such as child protection and child support.
In terms of consultation, the ALRC is to consult with family law, family relationship, social support services and health stakeholders who have expertise in family law and family dispute resolution. Documents are to be distributed widely so that members of the public and stakeholders can have their say.
The Attorney-General has asked the ALRC to enquire into and report on reforms addressing:
- the appropriate, early and cost-effective resolution of all family law disputes;
- the protection of the best interests of children and their safety;
- family law services, including (but not limited to) dispute resolution services;
- family violence and child abuse, including protection for vulnerable witnesses;
- the best ways to inform decision-makers about the best interests of children, and the views held by children in family disputes;
- collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems;
- whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial
- resolution of parenting and property disputes;
- rules of procedure, and rules of evidence, that would best support high quality decision‑making in family disputes
- mechanisms for reviewing and appealing decisions
- families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness;
- the underlying substantive rules and general legal principles in relation to parenting and property;
- the skills, including but not limited to legal, required of professionals in the family law system;
- restriction on publication of court proceedings;
- improving the clarity and accessibility of the law; and
- any other matters related to these Terms of Reference.
Call for submissions
The ALRC called for submissions on 13 March 2018 and they are due on 7 May 2018.
The ALRC invites submissions in response to the 47 questions and analysis in the Issues Paper, which is available on the ALRC website at alrc.gov.au/publications.
People who have had recent experiences with the system have an opportunity to share these with the ALRC anonymously through a Tell Us Your Story portal on the ALRC website – www.alrc.gov.au/content/tell-us-your-story
In relation to children, perhaps we will see a delineation in the role of the Independent Children’s Lawyer for children under 12, such that they are independently represented, and for children over 12, such that they are directly represented. There may be some fluidity in terms of whether the Independent Children’s Lawyer is to be an independent representative or a direct advocate based on non-age based considerations eg. intellectual capacity, mental health and an individual child’s level of maturity.
Property and Finances?
We have observed that a great deal of court time and resources is consumed case-managing property disputes that could more efficiently and cost effectively be dealt with at an early stage by alternative dispute resolution thereby freeing up already limited court time and resources.
Perhaps it will be made compulsory for clients to attend a form of Family Dispute Resolution in relation to Property and Financial matters with some specific exemptions. The exemptions should mirror those which currently apply to Parenting disputes, such as where there are allegations of family violence or there is genuine urgency. Perhaps issuing a certificate for property matters to clients, that mirrors the section 60I certificate, might be implemented.
It is an uncertain time for the Family Law Courts at the moment and there will be several unknown changes coming in the future.
Lawyers and others involved in the Family Law system are both engaged in the process and eager to see the outcomes of the review and the reforms that flow from that to better improve the experience of separating couples.
Doolan Wagner Family Lawyers will certainly be closely watching the progress of the review into the Family Law system.
Regardless of what these changes are and potential reforms on the horizon, we consider that it is crucial that any parent involved in the Family Law system prioritises their well-being. Separation, and disputes over property and/or children are undoubtedly some of the most stressful and uncertain times anyone can ever face.
Doolan Wagner Family Lawyers continues to specialise in this complex and fraught arena. We remain committed to assisting all parties in navigating the Family Law System.
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.