The Australian Law Reform Commission (ALRC) has recently published their radical proposal in what could be a complete upheaval of the family law system. The ALRC makes 60 recommendations in which they outline various methods they believe could improve the Family Courts and legislation. This review is the first review of the family law system since its establishment in 1975.
Among the 60 recommendations, the most significant and perhaps most controversial is the recommendation to abolish the federal family courts and revert the powers over the family law system from the Commonwealth to the State and Territories, with funding still coming from the Commonwealth. This would mean that the State and Territories would be able to make their own laws and rules in relation to the family law and how they best think things should run.
Part of the recommendation to revert power to the states and territories is to devise a mechanism that can resolve matters involving family law, family violence and child abuse at the same time and place, and a mechanism to increase information sharing between the family courts and other Commonwealth, state and territory systems, such as child protection agencies. A question arises however as to whether such a significant change will only put further pressure or resources and hold up Court outcomes and finalisation of matters.
Other recommendations include recommendations regarding changes to:
- Children’s matters particularly in relation to what children’s best interests are and looking at the capacity of each parent to care for children’s needs and to determine the best living arrangements;
- Simplify the approach to property division, including by creating a presumption of equality of contributions by the parties during the relationship and a presumption that superannuation assets are to be split evenly;
- Implementing methods to encourage amicable resolution through increased alternative dispute resolution and greater use of Family Dispute Resolution;
- Increasing the scope of arbitration;
- Implementing methods to increase the efficiency and accountability of case management practices of Courts and the parties;
- Improving parties’ abilities to comply with Orders made regarding children;
- Improving the level of support services in the Courts;
- Building accountability and transparency through various monitoring and reporting obligations of the Family Law Council, Law Council of Australia, the Australian Government Attorney-General’s Department and other regulatory bodies;
- Improving legislative clarity by a comprehensive redrafting of the Family Law Act 1975 and its subordinate legislation; and
- Expanding or adding secondary interventions that support clients who are engaged with the family law system.
Regardless of what you think of these recommendations and whether or not they should be implemented, the Report does highlight issues within our current family law system, in particular how it deals with family violence, the lengthy wait times due to overcrowded/under-resourced courts and the complexity of the Family Law Act. However, there is a serious question as to whether the proposed recommendations will actually address these issues or not.