Family Law for the Future

16 April 2019

By Prue Hawkes

The Australian Law Reform Commission’s Review of the Family Law System

On 10 April 2019 the Australian Law Reform Commission (ALRC) released their Final Report and Recommendations for improving the current family law system in Australia. The ALRC was directed to consider whether, and if so what, reforms to the family law system are necessary or desirable and in particular what amendments should be made to the Family Law Act (the Act) and other related legislation.

The ALRC made sixty (60) recommendations in response to the inquiry. The full list of recommendations and report can be accessed at https://www.alrc.gov.au/inquiries/family-law-system. These recommendations call for radical reform with the ALRC inquiry finding that the family law system is not currently able to adequately assist Australian separated couples to resolve disputes. The ALRC highlighted the following concerns in respect of the family law system in its current state:

  1. Children are not consistently protected from harm;
  2. People experiencing family violence are not consistently protected from harm;
  3. Disputes are protracted by constraints on the courts and conduct of parties who are unable or unwilling to resolve their dispute quickly and without acrimony, and,
  4. The Act is no longer clear or comprehensible.

While there are a number of recommendations made by the report, some of the recommendations that will have a significant effect on our clients and practice of family law in Sydney are set out below:

Children’s Matters

  1. Recommendation 1: That the federal family courts eventually be abolished and state and territory courts be vested with the relevant power and resources to exercise jurisdiction under the Act concurrently with the relevant state and territory child protection and family violence jurisdiction. This is in contrast to the current situation where families who are experiencing family violence or risk to children may be before the Local Court regarding criminal matters, the Children’s Court regarding risk of harm issues and the Family Courts.
  2. Recommendation 2: That the Australian Government work with the state and territory government so that a national information sharing framework can be implemented in respect of the safety, welfare and wellbeing of families and children.
  3. Recommendation 5: That section 60CC of the Act regarding the considerations of what is in a child’s best interest be amended to include:
    • What arrangements best promote the safety of the child and the child’s carers including safety from family violence, abuse, or other harm;
    • Any relevant views expressed by the child;
    • The developmental, psychological, and emotional needs of the child;
    • The benefit to the child of being able to maintain relationships with each parent and other people who are significant to the child, where it is safe to do so;
    • The capacity of each proposed carer of the child to provide for the developmental, psychological and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist with caring; and,
    • Anything else that is relevant to the particular circumstances of the child.
  4. Recommendation 7: That section 61DA of the Act be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’.
  5. Recommendation 8: That the legislative pathway under section 65DAA of the Act for considering equal care and substantial and significant care where an order is made for equal shared parental responsibility be repealed.

Property Matters

  1. Recommendation 11: That the Act be amended to specify the steps that a court will take when considering altering property interests of parties to a relationship, and, simplify the list of matters that a court should take into account when considering making an order for the alteration of property interests.
  2. Recommendation 12: That a presumption of equal contributions throughout the relationship be provided for by the Act.
  3. Recommendation 13: That the date for determining the value of the parties’ assets and liabilities be the date of separation.
  4. Recommendation 16: That a presumption that the value of superannuation assets accumulated during the relationship should be split equally between the parties be provided by the Act.
  5. Recommendation 17: That the Act include a template for superannuation splitting orders that are commonly made.
  6. Recommendation 18: That the Act be amended so that the provisions for spousal maintenance and property alteration be dealt with separately and that access to interim spousal maintenance claims be enhanced by use of Registrars in urgent applications.

Encourage amicable resolution

  1. Recommendation 21: The Act be amended so that parties are required to take genuine steps to attempt to resolve their property and financial matters prior to filing an application with the Court and require that a court not hear an application unless a genuine steps statement has been filed. This reflects section 60I of the Act which already requires parties in parenting matters to engage in family dispute resolution prior to making an application to the Court.

Case Management: efficiency and accountability

  1. Recommendation 30: That the Act include as an overarching purpose of Family Law practice and procedure the intention to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families.
  2. Recommendation 36: That the Act be amended to remove the general rule of section 117 that each party bear their own costs and articulate the scope of the court’s power to award costs.

Compliance with children’s orders

  1. Recommendation 38: That parties be required by the Act to meet with a family consultant following final parenting orders where they are made after a contested hearing.
  2. Recommendation 41: That where a final parenting order is already in force the court be required to consider whether there has been a significant change of circumstances and it is in the best interests of the child for the orders to be reconsidered.

A number of other recommendations have been made that seek to address the primary concerns highlighted by the inquiry and attempt to increase the efficiency of the Family Law system and reduce the acrimony resulting from parties’ engagement with that system. Our experience in the Family Law system has provided us with a front row seat to the challenges clients face when experiencing family breakdown.

Given the emotional nature of Family Law practice where significant decisions need to be made by parties regarding the care of their children and the joint wealth that has been accumulated over the course of the relationship, amongst other things, it is always our intention to reduce acrimony and increase the ease and efficiency of resolving Family Law disputes. Our team includes solicitors who are trained in mediation and collaborative law so as to provide alternative options to court and it is our goal to assist clients wherever possible to achieve an out-of-court settlement. It is our view that, regardless of the inefficiencies of the Family Law system, an out-of-court settlement that is negotiated between parties results in a more amicable resolution and one that better reflects the needs of the parties both for themselves financially and for the ongoing care of their children.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

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.

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