Opinion piece: We can only hope that this inquiry is genuine
27 September 2019
Opinion piece by Law Council of Australia President, Arthur Moses SC - published in The Australian, Friday, 27 September 2019.
What is the point of another inquiry into family law?
The answer depends upon whether the government is genuine, this time, in seeking to identify a comprehensive response to the problems plaguing the family law system. The process and results of the inquiry can only be as good as the government permits.
The announcement of the inquiry has attracted widespread criticism.
Much of this has been based on understandable cynicism as to the government’s motivation in establishing yet another examination of the family law system before engaging with the Australian Law Reform Commission’s recent review.
The government’s bona fides are not assisted by its stated intentions to press ahead with the ill-conceived plans for fundamental structural change to the court system before responding to the ALRC report and despite the inquiry’s terms of reference.
Yet what is required in the interests of Australian families and children is a holistic approach to the family law system and a whole-of-system response.
No party in the commonwealth parliament has a known policy position in relation to the family law system, let alone a policy that provides a coherent and considered response to the difficulties facing the system.
The government has consistently avoided engagement in this most fundamentally important area of Australian society. This must end.
The Law Council of Australia has pressed for a thorough review of all options for reform of the family law system. This inquiry represents an opportunity for this to occur.
The Law Council calls upon the parliament to ensure this opportunity for Australian children and families is not missed, is not compromised by the government pressing ill-conceived changes in the face of the inquiry and is not derailed by any preconceived views of those who are to form the committee.
The terms of reference do not expressly extend to matters that stakeholders in the family law system know only too well to be critically important — including the prevalence of family violence issues, proper resourcing and management.
Yet this ought not be permitted to constrain the opportunity presented by the inquiry.
The Law Council is committed to holding the inquiry to account for the need to undertake a full examination of all aspects of the family law system.
To do otherwise would be an opportunity lost and relegate the inquiry to yet another expensive, cynical political ploy. The inquiry should be permitted the time it properly requires to undertake its important work.
It ought not be truncated nor forced to rely upon fundamentally unreliable material, as was exposed in committee by the Senate in relation to the government’s proposal for the merger of the Family Court and Federal Circuit Court.
In the meantime, this inquiry should not stop the government from addressing immediately the pressing need for proper resourcing and funding of those parts of the system that are in crisis.
This means proper funding for family violence support services, proper legal assistance funding for those in need and proper funding to ensure Australian children and families are not waiting for three or more years for justice.
An inquiry is not needed to identify these critical needs in the system, whatever form it is to take.
The immediate needs of the family law system are not met by the government pressing ahead with its flawed plan to alter the structure of the court system.
Described by the chair of the Senate committee that reviewed the plan as a “short-term fix”, it has been rejected by key stakeholders and failed to pass the last parliament.
An attempt to legislate the merger at this time would only serve to undermine the legitimacy of the inquiry from the outset and give substance to the cynicism it has met from some.
The Law Council calls for the inquiry to be conducted in a respectful, safe and inclusive manner, informed by expert advice and empirical evidence.
We urge the committee to consult widely with all stakeholders, including the community, courts, judges, family violence service providers and the legal profession, on what change would be most beneficial to children and families.
The community deserves each member of the inquiry to come to it with minds open to the possibility that it represents for our children, families and victims of family violence experiencing the most difficult of circumstances.
This inquiry has the potential to drive an informed, holistic parliamentary response to the challenges facing our family law system now and into the future. That is the point. But to achieve this it must be comprehensive and consultative.
Arthur Moses SC
President, Law Council of Australia