Australia: Family Law for the Future report: a review of the family court system

The Australian Law Reform Commission's Family Law for the Future report on the current family law system was tabled last Wednesday, 10 April 2019.

It is the first review of the Australian Family Court since its establishment in 1976.

The Australian Law Reform Commission (ALRC) has spent 18 months working on the inquiry, which is headed by the Hon Justice SC Derrington.

The final Family Law for the Future report contains 60 recommendations in total, designed to overhaul the family court system. The recommendations are divided into different categories, as explored below.

Closing The Jurisdictional Gap: A State-Based Family Law System

The ALRC's most significant recommendation is a complete change to the structure of family law courts, suggesting the establishment of family courts in all states and territories.

This forms Recommendation 1, part of the report's aim to close the "jurisdictional gap."

Under the report's suggestions, the new state- and territory-based family courts would be able to make orders under the federal Family Law Act 1975, as well as under state and territory child protection and family violence legislation.

The reason for this is to prevent children from falling through the gaps. Children are usually the most affected by family breakdowns and should be able to rely on the court system to help them.

Too often, family disputes are shunted between the Family Court and Federal Circuit Court, the latter of which hears cases across as variety of areas.

The Family Court currently hears cases on division of property and child custody, while the Federal Circuit Court hears less serious family law cases.

State and territory courts deal with child protection and family violence.

According to the ALRC, the only way to repair this fragmented system is to create a single court in each state and territory focused on children's best interests.

If these recommendations are implemented, the Commonwealth would still be the level of government that makes laws regarding family disputes and family law, but the states and territories would have their own courts to make orders under these laws as well as their own.

Recommendations 2 and 3 suggest establishing a national information sharing framework to guide the sharing of information about families' and children's safety as well as forming part of the National Domestic Violence Order Scheme.

Children's Matters

This category comprises seven recommendations relating to children and the way decisions are made about them in the Family Court.

The ALRC report suggests amending section 60CC of the Family Law Act 1975, which explains the factors to consider when determining a child's best interests.

The report also provides two recommendations specifically for Aboriginal and Torres Strait Islander children, suggesting that the Family Law Act 1975 be amended to include Aboriginal or Torres Strait Islander concepts of family in the definition of "member of family," and that a court should consider Aboriginal and Torres Strait Islander children's opportunities to maintain a connection to their family and culture.

The presumption of equal shared parental responsibility has been a major part of family law since the Act was amended to include this principle in 2006. The Family Law for the Future report, however, seeks to change this by replacing it with a presumption of "joint decision making about major long-term issues."

A Simplified Approach To Property Division

This section, containing recommendations 11 to 20, aims to change the way financial disputes are managed in the court.

It has two recommendations to include new presumptions in the Family Law Act 1975. These are a presumption of equality of contributions during the relationship and a presumption that the value of superannuation assets is to be split evenly between parties.

Similar to closing the jurisdictional gap regarding children and family violence, the report recommends simplified ways to deal with the crossover between family law and other areas of law, namely the National Consumer Credit Protection Act 2009, the Privacy Act 1988 and the National Consumer Credit Protection Act 2009.

Encouraging Amicable Resolution

Under the current system, couples are already required to attend family dispute resolution sessions prior to going to court for parenting orders.

Family Law for the Future's new recommendations suggest implementing a similar obligation for couples seeking financial orders and property division, requiring a family dispute resolution certificate.

The report also suggests extending the confidentiality and inadmissibility of discussions and material in family dispute resolution to include property and financial matters.

Arbitration

This section recommends expanding the scope of matters which may be arbitrated, including financial matters, child maintenance, child support, international relocation and contravention matters.

Case Management: Efficiency And Accountability

The current family law system is widely known for its inefficiencies, with a backlog of 20,000 cases, some of which may take up to two years to resolve.

One of the main aims of the family law system review by the ALRC is to improve its efficiency.

Therefore, the report recommends that the overarching purpose of family law practice and procedure be to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

The report also recommends that the Family Law Act 1975 impose a statutory duty on parties, lawyers and third parties to cooperate amongst themselves in order to achieve this overarching purpose.

Compliance With Children's Orders

This section of Family Law for the Future  recommends that parties meet with a Family Consultant after parenting orders have been made to help them understand the orders.

It also recommends further clarity and simplification in the Family Law Act 1975. For example, the report suggests that the court must consider whether there has been a significant change in circumstances when new parenting orders are being sought while final parenting orders are already in force, and whether it is in the best interests of the child that the new orders be considered.

Support Services in the Courts

Here, it is recommended that "family consultant" is replaced with "court consultant" in the Family Law Act 1975, that Independent Children's Lawyers should be obliged to comply with the Guidelines for Independent Children's Lawyers, and that the Federal Government should ensure the availability of Indigenous Liaison Officers.

The report suggests establishing a decision making framework for people with a disability, and suggests the Federal Government assist state and territory governments in facilitating the appointment of statutory authorities as litigation representatives.

Building Accountability and Transparency

Rather having a major review every few decades – this review being the first one of its kind since 1976 – the ALRC recommends that the Family Law Council's responsibilities be extended to include monitoring, regular reporting and inquiries into the performance of the family law system.

Since many children have had negative experiences in the family law court system, the report suggests the establishment of a Children and Young People's Advisory Board.

It also recommends a mandatory national accreditation scheme for private family report writers and a requirement for any organisation offering a Children's Contact Service to be accredited.

Legislative Clarity

This section recommends that the Family Law Act 1975 and its subordinate legislation be comprehensively redrafted.

Secondary Interventions

The final four recommendations of the ALRC report cover Family Advocacy and Support Services, Legal Aid Commissions and Family Relationship Centres, recommending the expansion of their services.

Conclusion

These 60 recommendations in Family Law for the Future are the culmination of a complete review of the Australian family law system.

The principal recommendation of establishing state- and territory-based family law courts has been called "radical" and would significantly change the way Australian families navigate family breakdowns and disputes in the court system.

The ALRC hopes that implementing its recommendations would improve outcomes for families, especially children, and would greatly improve the efficiency of the family court system.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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