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Family Law Review underway

14 June 2018

The Law Council has made a submission to the Australian Law Reform Commission’s Review of the Family Law System – Issues Paper 48.

The ALRC review, announced in September 2017, is the first, independent comprehensive review of the family law system since the inception of the Family Law Act 1975 - more than forty years ago.

It is often observed, that the family courts system is in crisis. Chronic underfunding for more than a decade has led to a court system which struggles continually to meet the needs of the community.

The funding of the court system has failed to keep pace with the growth in the number of Australians who need access to it and the breadth and complexity of the issues dealt with by the courts on a daily basis.

The Law Council is struck by how many problems identified in the Issues Paper could have been avoided or reduced by the proper funding of the family courts.

While the Law Council commends the ALRC for exploring better ways of meeting the needs of separated families, the Law Council noted that many of the ideas raised in the Issues Paper will require a significant injection of funding from government.

The Law Council submission acknowledged that when the Family Law Act 1975 (Cth) began, it was a remarkable piece of modernising law reform which included the introduction of no fault divorce, recognition of indirect and homemaker contributions and enshrined the first form of alternative dispute resolution (conciliation conferences) in legislation.

Not surprisingly though, as the ALRC’s Issues Paper identifies, ‘Australian social and family life has changed a great deal since the time of these reforms’.

The ideal role of the family law system as a ‘one-stop shop’ of legal and counselling services to help resolve disputes, as envisaged in 1975, is unlikely to ever exist throughout the Commonwealth in part due to the powers of the Commonwealth through the Constitution and both state and national budgetary processes.

The Law Council would like to see a family law system which is understandable and accessible to all, where the early and easy identification of supports and services which will assist parties upon the breakdown of their relationship (whatever form that relationship takes) and an integration between those supports and services to seek to ensure that the family’s experience of such services is seamless (even if those services are functionally separate) - including the sharing of information between those supports and services where appropriate and with proper regard to the rights and privacy of each member of the family.

Collaboration, not demarcation, between the different courts, agencies and support services to which a family may be exposed and a court process within the wider family law system which is properly resourced, accessible and responsive, efficiently doing justice according to law are also objectives of an effective family law system, set out in the submission.

Much of the commentary in the Issues Paper focuses on those people who use the family law system who have what might be summarised as ‘complex needs’. Many of these people’s experience of the family law system is of being a litigant in a court (or multiple courts), yet the overwhelming majority of separating couples in Australia are able to resolve their financial and/or parenting arrangements without resort to court and reach agreement in a range of ways.

The submission also put forward principles which should guide any redevelopment of the family law system, in addition to suggestions for how access to information about family law and family law related services, including family violence services, could be improved.

Ways in which changes to the family law system, including to the provision of legal services and private reports, could reduce the cost to clients of resolving family disputes – which included a discussion around legal aid funding were also raised.

The Issues Paper provided an opportunity to put forward changes to the definition of family violence, or other provisions regarding family violence, in the Family Law Act to better support decision-making about the safety of children and their families; changes which could be made to Part VII of the Family Law Act to enable it to apply consistently to all children irrespective of their family structure with particular regard to cultural diversity and same-sex couples and changes could be made to the provisions in the Family Law Act governing property division and maintenance to improve the clarity and comprehensibility of the law for parties and to promote fair outcomes.

Changes to court processes, including changes which could be made to facilitate the timely and cost-effective resolution of family law disputes or modification to current dispute resolution processes, to provide effective low-cost options for resolving small property matters were also considered.

Online dispute resolution processes and if they should play a larger role in helping people to resolve family law matters in Australia along with safeguards that should be incorporated into their development were within the Law Council’s submission.

The experiences, perspectives, views and participation of children in the court process, decision-making process and dispute resolution process were also remarked upon submission, as were the core competencies which should be expected of professionals who work in the family law system and the measures required to ensure family law system professionals have and maintain these competencies.

The Law Council’s submission to the ALRC is available here.

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