Opinion piece: Commonwealth best to fix broken families, child violence
7 June 2019
Opinion piece by Law Council of Australia President, Arthur Moses SC – published in The Australian, Friday, 7 June 2019.
There is no doubt Australia's family law system is broken. Delay, cost and confusion continue to let down families and children in need.
Successive governments have failed to do what is needed to improve the system: provide adequate funding, sufficient resourcing and a coherent structure to stop children and victims of family violence from falling through the cracks.
Attorney-General Christian Porter recently announced that his “highest priority” in the new parliament will be structural reform of the family law courts.
The Law Council welcomes the priority to be given to reform. But the Attorney-General’s plan to simply reinstate a flawed proposal to merge the Family Court and Federal Circuit Court will not fix the problems plaguing the system.
In fact, it will only make matters worse.
Liberal senator Ian MacDonald, chair of the recent senate inquiry into the government’s merger proposal, said at the weekend it was only a “short term fix”.
A specialist court must not be destroyed based on a mirage that this will fix problems which in reality require more resources and holistic reform, not simply renaming a court or creating a bureaucratic empire. That is a cruel hoax on Australian families.
Families deserve the best solutions, not nonsense.
If Porter is serious about real reform, the government now has a unique opportunity to consider what structural change would be most beneficial to families in need of a functioning and well-resourced system capable of delivering timely and proper justice.
It is an opportunity not to be wasted. Shortly before the election, the Australian Law Reform Commission released the first root and branch review of the Family Law Act 1975 in more than 40 years. Its first recommendation is that the government consider fundamental changes to the identity and structure of the courts to deal with both family law as well as with family violence and child protection issues, which have traditionally been the province of the states.
In April, the government broke trust with parliament by inexplicably withholding the ALRC report from senators who were being pressured to vote on the flawed merger proposal before the upper house.
The government is yet to respond to that recommendation or to any of the 59 other recommendations by the ALRC.
The ALRC highlighted the fragmented nature of the present system. As a rule, family violence and child abuse issues are dealt with by the states and territories and financial and parenting issues arising on family breakdown fall to the commonwealth.
This results in delay, additional cost and too often in an inconsistent response to families and children in crisis.
The ALRC recommends establishing family courts in each state and territory to provide a comprehensive response to these difficulties. This position is unlikely ever to be achieved.
But there is a response available that would address both the issues identified by the ALRC and those confronting the family law system. The government should lead consultation over necessary structural reform by seeking to assume responsibility from the states and territories for all aspects of the welfare of children and in addressing family violence.
Responsibility for exnuptial children and de facto relationships has already been referred to the commonwealth, to considerable benefit.
This final step would provide families and children with one coherent and seamless system capable of addressing all issues involving children and families. Where necessary, disputes could be dealt with by one court with the power to determine all aspects of a dispute.
The answer is not to be found in reviving the flawed merger before the last parliament that would in effect abolish the stand-alone, specialised Family Court without any regard to the ALRC’s recommendations.
The legal profession and family violence service providers agree that the merger is not the solution. There remains a real risk that, if enacted, the merger will only increase costs and delays as well as increasing the risk of erroneous decisions, further hurting families.
When the Coalition party room met for the first time in the 46th parliament, the Prime Minister reminded his government that serving the Australian people means ensuring “that we focus on fixing the problems that need to be fixed”.
There is now a real opportunity to have an informed and proper discussion and consideration of all options available to fix this most important of systems. The Australian community should not be denied that opportunity.
ALRC president Sarah Derrington has said that taking the time to get family law reform right is more important than speed.
Any reform must be carefully considered through informed consultation with those involved in the family law system: Australian families, social scientists, support workers, the courts, judges and legal practitioners.
What Australia needs is a comprehensive blueprint to protect families and children into the future. Not the regurgitation of a flawed stopgap that is fundamentally unfit for purpose and will hurt Australians who have already suffered enough.
Arthur Moses SC
President, Law Council of Australia