Introduction
2.1
Courts are an integral component of the family law system, however, the system itself consists of a 'broad range of organisations and programs to help ensure separating families can access the specific assistance they need'. Those organisations and programs include: legal advice and representation, alternative dispute resolution, family violence services, family relationship services, child support and other social services providing assistance with counselling, health and housing. The system 'exists to help separated families work through the legal and personal issues that arise when couples separate'.
2.2
However, as the Australian Law Reform Commission (ALRC) noted, it is '… somewhat of a misnomer to describe this collection of courts and legal and social service providers as a 'family law system'. The ALRC went on to refer to the observation by the Family Law Pathways Advisory Group in 2001 that 'it was not designed as a system and does not always operate coherently'.
2.3
Detailed information about the family law system, its components and operation is readily available. According to The Family Law System in South Australia: A Handbook and Service Directory for Separated Families, (SA Family law Pathways Network Handbook) the family law system adheres to the following principles:
The safety and welfare of all parties, adults and children, is paramount.
Where children are involved, their best interests will be the primary consideration in all decision making.
Where appropriate, parties are encouraged to resolve their parenting, property and other disputes without resorting to contested court proceedings.
2.4
This chapter provides a brief overview of:
services within the family law system available for couples and families to resolve disputes;
the respective roles of the federal family law courts, their funding and caseloads;
the state courts that can exercise family law jurisdiction; and
government support and funding for the broader family law system.
2.5
The chapter then sets out a summary of the reforms since the introduction of the Family Law Act 1975 (Family Law Act) and discusses current initiatives and pilot programs.
Services that couples use to resolve disputes following separation
2.6
While a significant number of the individual submissions received by the committee have focussed on personal experiences with the Family Court of Australia (Family Court), the Federal Circuit Court of Australia (Federal Circuit Court) or the Family Court of Western Australia (FCWA), the reality is that only a small proportion of separating families have their family law disputes determined by the courts. The majority of families do not engage with the family law system at all. As an Australian Institute of Family Studies (AIFS) 2014 report on post-separation parenting, property and relationship dynamics after five years shows, the most utilised resolution pathways for parents resolving parenting arrangements were:
discussions between parents themselves52.6 per cent
nothing specific, it just happened19.1 per cent
counselling, mediation or family dispute9.7 per cent
resolution services
focus child decided0.5 per cent
2.7
For property matters, the AIFS study found that parties were more dependent on the services of a lawyer to resolve the property settlement and, while still the most utilised resolution pathway, less use was made of discussions between the parties and of mediation as compared to parenting matters:
nothing specific it just happened18.8 per cent
mediation or dispute resolution services4.2 per cent
2.8
The Attorney-General's Department (AGD) noted in its submission that:
Though few separating families extensively use the family law system, families who are at risk of, or are already experiencing, some form of disadvantage are more likely to fall within the minority of people who are reliant on the family law system to resolve their issues. The Law and Justice Foundation of New South Wales 2008 Legal Australia-Wide Survey found that people with a disability, single parents, people who were unemployed and people living in disadvantaged housing had the highest vulnerability to experiencing legal problems.
2.9
The AGD further stated:
The parents who do use [family law] services (family dispute resolution/mediation, lawyers and courts) are often those affected by a range of complex issues correlated with family breakdown, including family violence, child safety concerns, mental ill health and substance abuse. Some who use court services extensively may also do so because they are seeking to protract the dispute to abuse, punish or coerce the other party.
2.10
This is supported by research published in 2015 by AIFS in which they surveyed recently separated parents who had resolved their parenting matter through the courts and asked whether seven issues were of relevance to their situation prior to separation. Over 85 per cent (85.3 per cent) of respondents reported allegations of emotional abuse, 53.7 per cent reported allegations of physical violence, and 38.1 per cent reported four or more issues (alcohol or drug use, mental health, gambling, problematic Internet or social media use, pornography use, emotional abuse and physical violence).
2.11
The earlier 2014 AIFS report also found that a protracted process of reaching agreements was linked with a greater use of lawyers or the courts.
2.12
Mr James Steel, President, Family Law Practitioners Association of Queensland provided the following evidence concerning use of the family law system in matters that lawyers are engaged in:
The [legal] profession continues to assist the vast majority of separated families to resolve their matters by way of alternative dispute resolution. Only approximately five per cent of cases end up requiring a determination by the court.
Overview of the family law courts
2.13
The legal issues experienced by families at the time of a relationship breakdown can be complex and may involve the need to engage with multiple court systems and agencies, across both federal and state/territory jurisdictions. In particular, individual submissions to the inquiry detailed experiences with the federal family law system and child support agency, as well as state and territory family violence jurisdictions and child protection system.
2.14
As the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs report into A better family law system to support and protect those affected by Family Violence (2017 Family Violence Report) stated:
It is important to note that neither the Commonwealth nor the states and territories have exclusive legislative competence in the area of family law, which has resulted in 'an especially fragmented system with respect to children'. With the exception of Western Australia, all states referred state powers with the effect that the federal parliament has jurisdiction over marriage, divorce, parenting and family property on separation. All states and territories retain jurisdiction over adoption and child welfare.
Rather than referring its powers to the Commonwealth, Western Australia established a state family court, the Family Court of Western Australia, which exercises both federal and state jurisdiction.
2.15
States and territories also retain jurisdiction over family violence, both with regard to criminal offences and family violence protection orders. As the 2017 Family Violence Report noted, the role of state and territory family violence jurisdictions and the federal family law system are different:
Protection orders made under state and territory family violence legislation are aimed at providing immediate and future personal protection from family violence. Whereas family law resolves separation disputes, including parental responsibility and property division and also safety.
2.16
Chapter 7 discusses family violence orders in more detail and the overlap between these and family law orders.
Federal family law courts
2.17
There are currently two federal family law courts—the Family Court and the Federal Circuit Court. The Service Charter for the two courts sets out their respective roles as follows:
Family Court
The Family Court of Australia is a superior court of record created by the Family Law Act 1975. The Family Court deals with the most complex family law disputes, including those involving serious allegations of physical and sexual abuse.
The Court's purpose is to:
determine cases with complex law, facts and multiple parties
cover specialised areas, such as applications pursuant to the Hague Convention on International Child Abduction, special medical procedures, child sexual abuse, and international relocation, and
provide national coverage as the appellate court in family law matters.
The focus of the Court is on helping families to resolve their disputes by agreement rather than proceeding to a formal hearing by a judge.
Federal Circuit Court
The [Federal Circuit Court] is a federal court dealing with both family law and general federal law matters, although most of its work is in the area of family law. Previously known as the Federal Magistrates Court, it was established with the aim of providing a simple and accessible alternative to litigation in the superior federal courts.
…
In family law, the [Federal Circuit] Court primarily deals with nearly all first instance divorce applications, applications for parenting and/or property orders and child support and enforcement issues. The Federal Circuit Court of Australia Act directs the Court to operate informally and to use streamlined procedures. This complements the Parliament's initiatives to encourage people to engage in a range of dispute resolution processes.
2.18
Chapters 8 and 9 address parenting and property matters respectively.
Funding and caseloads in the federal family law courts
2.19
The Family Court and Federal Circuit Court are primarily funded through departmental appropriations. In 2018–19, the budget funding for the courts totalled approximately $45 million and $97 million, respectively. As at 30 June 2019, the Family Court had 34 judicial positions, including the Chief Justice and the Deputy Chief Justice; while the Federal Circuit Court had 69 positions, including the Chief Judge. The Chief Justice of the Family Court holds a dual appointment as the Chief Judge of the Federal Circuit Court.
2.20
Family law comprised 90 per cent of the applications filed in the Federal Circuit Court in 2018–19, a total of 85 234 applications. Of these, 52 per cent (44 342) comprised divorce applications, 26 per cent (22 115) were interim applications, 20 per cent (17 070) were applications for final orders and two per cent (1 707) were other applications. In the Federal Circuit Court, excluding divorce applications, 51 per cent of applications related specifically to matters relating to children, 36 per cent related only to property matters, and 13 per cent related to children and property matters.
2.21
The Family Court had 19 588 applications filed in its original jurisdiction over the same period—71 per cent (13 872) were for consent orders, 17 per cent (3 236) were interim applications, 11 per cent (2 225) were applications for final orders and one percent (255) were other applications. For the applications for final orders in the Family Court, 52 per cent of matters related to financial orders, 32 per cent were for parenting orders, 14 per cent were for parenting and financial matters and two per cent for other matters.
State courts exercising family law jurisdiction
2.22
As discussed above, the FCWA is the only state Family Court in Australia. Along with the Magistrates Court of Western Australia, it:
… exercises federal jurisdiction under the [Family Law Act] in relation to matrimonial causes where there is a nexus to Western Australia between married parties, or unmarried parents of a child located outside Western Australia.
2.23
For remaining family law matters pertaining to unmarried parties, these courts exercise jurisdiction under state law.
2.24
In all other states and territories, courts of summary jurisdiction, usually local or magistrates' courts, have limited jurisdiction under the Family Law Act. This jurisdiction hears the following:
Defended property proceedings in relation to property with a total value up to $20 000 or such higher amount as prescribed by regulation. Where the value of the property exceeds $20 000 or such higher amount as prescribed by regulation, these courts can only hear the matter with the consent of all parties.
Children's matters. These courts can only hear defended proceedings for a parenting order where all parties consent. However, even where consent is provided, the court may still transfer the matter on its own initiative.
2.25
Should the parties not consent to the court determining the matter, then the court of summary jurisdiction or prescribed court must transfer the matter to the Federal Circuit Court or the Family Court.
Government support for family law services
2.26
There are a range of specialised family law services funded by the Australian Government that 'are designed to enable low or no cost access to the family law system'. These include:
Family Relationship Centres (FRCs), which provide families experiencing separation with information, advice and dispute resolution services to help them reach agreement on parenting arrangements without going to court.
Family Law Counselling, which helps couples and families to manage relationship issues arising out of relationship changes, separation and divorce, through counselling, therapeutic intervention, support, information and referral.
Family Dispute Resolution Services, which provide a specialist mediation process conducted by independent, accredited practitioners to help members of families, including separated families, resolve family law matters without going to court.
Regional Family Dispute Resolution services, which are designed to meet the particular needs of regional communities, providing a range of services to help separating families resolve family law matters without going to court.
Children's Contact Services, which assist children of separated parents to establish and maintain a relationship with their other parent and family members through supervised visits or changeover services.
the Parenting Orders Program—Post Separation Cooperative Parenting Program, which helps separating families to manage matters about parenting arrangements and increase cooperation and communication, using child focused and child-inclusive interventions with the support of a case worker. This program offers education and support to parents where conflict is affecting their relationships with their children.
the Supporting Children after Separation Program, which helps children from separating families to deal with issues arising from the breakdown in their parents' relationship, and allows children to participate in decisions that affect them.
2.27
In addition to funding these specialised family law services, the Australian Government also 'provides funding for the delivery of legal assistance through Legal Aid Commissions, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services'.
Family law matters make up a considerable amount of the legal services provided. For example:
In 2018–19, 93% of legal representation services provided by Legal Aid Commissions, 52% of dispute resolution services delivered by Community Legal Centres, and 57% of dispute resolution services delivered by Aboriginal and Torres Strait Islander Legal Services related to family law matters. In the same time period, approximately 705,000 Commonwealth-funded legal assistance services were provided for family law matters in total.
2.28
From 1 July 2020, the Australian Government's funding for front-line legal assistance services will be over $2 billion over five years under the proposed National Legal Assistance Partnership 2020–25 (NLAP). Under the NLAP, funding will also be provided for the delivery of targeted legal assistance services relating to family law and family violence, including $69.5 million over five years in baseline funding for Community Legal Centres. It will also include specific Commonwealth funding for specialist Domestic Violence Units and Health Justice Partnerships and the Family Advocacy and Support Services.
2.29
In addition to the implementation of the NLAP, the AGD advised the committee that:
… the Australian Government has also increased funding for Family Violence Prevention Legal Services by an additional $3 million over three years. This increase means the Government is investing over $75 million from 2020–21 to 2022–23 to Family Violence Prevention Legal Services for frontline family violence and support services that directly improve safety for women and children, and provide better access to legal support.
2.30
The Australian Government also supports measures aimed at:
primary intervention, such as the Family Relationship Advice Line, the website Family Relationships Online and the development of an Online Dispute Resolution System for family law disputes; and
supporting judicial education on family violence, such as the online National Domestic and Family Violence Bench Book and the funding of the National Judicial College of Australia to deliver family violence training to family law and other judges.
Establishment and reforms to the family law system
2.31
The Family Law Act commenced on 5 January 1976. It replaced the Matrimonial Causes Act 1959–1973 (Matrimonial Causes Act) which required matrimonial fault for divorce. The Family Law Act also provided a legislative framework for additional areas of family law such as maintenance, custody and matrimonial property, which were, at that time, dealt with under state legislation.
2.32
One of the key differences identified in the Explanatory Memorandum between the Family Law Bill 1974 (the Family Law Bill) and the Matrimonial Causes Act was that 'procedures will be simplified, hearings will be less formal and costs will be reduced'. Conciliation provisions under the Family Law Bill were also strengthened and greater use was to be made of welfare officers. The Explanatory Memorandum further provided:
All proceedings are to be heard in closed court, that is, only relatives or friends of either party, marriage counsellors, welfare officers and legal practitioners may be present in court, and the court has the power to exclude any of these persons. The Judge and counsel are not to robe and the court is to proceed without undue formality. It is to endeavour to keep proceedings from being protracted.
2.33
Senator the Hon Lionel Murphy, the then Attorney-General, further expounded on the purpose of the Family Law Bill in his second reading speech on 1 August 1974:
The main purpose of the Bill is to eliminate as far as possible the high costs, the delays and indignities experienced by so many parties to divorce proceedings under the existing Matrimonial Causes Act. The main way in which the Bill seeks to achieve this is by replacing the existing fault grounds of divorce with a single, no fault ground—irretrievable breakdown of the marriage—to be provable only by 12 months' separation of the parties up to the date of hearing of the divorce application …
2.34
Aside from providing for no-fault divorce, the Attorney-General noted that the main purpose of the Family Law Bill would be advanced by other provisions, which:
… provide for more simple procedures, require courts to proceed without undue formality, and for proceedings to be heard in private. Apart from exceptional circumstances, when the court may make an order, each party to proceedings under the Bill will bear his or her own costs. Legal aid will be available to every person in need who is a party to proceedings under the Bill.
2.35
With regard to the custody of children, the Attorney-General stated:
… the main improvements contained in the Bill over existing law are: The requirement for greater use of welfare officers to try and achieve a settlement between the parties; greater opportunity for the wishes of the child whose custody is in dispute to be ascertained; and more effective enforcement of custody and access orders.
Key legislative changes
Family Law Amendment Act 1983
2.36
The Family Law Amendment Act 1983 implemented a number of changes recommended in the 1980 report of the Joint Select Committee on the Family Law Act (1980 Family Law Act Report). The amendments included the:
provision that proceedings in the Family Law Court should be open to the public and heard in open court, subject to a discretion in the Court to exclude certain persons;
specification of certain criteria relevant to the welfare of the child that a court is required to take into account in custody and like proceedings;
inclusion of definitions for the purpose of the Act of 'guardianship' and 'custody';
provision that the Family Law Court shall as far as practicable make such order as is least likely to lead to the institution of further proceedings with respect to the custody or guardianship of the child; and
replacement of the requirement for a court to give effect in custody and like proceedings to the wishes of a child who has attained the age of 14 years by a provision enabling any wishes expressed by children of any age to be taken into account to the extent appropriate.
2.37
The 1980 Family Law Act Report noted that there appeared to be some confusion about the terms guardianship and custody used in the Family Law Act and concluded:
… it would seem that a need exists for precise meaning to be attached to terms such as guardianship, custody, care and control as these assume considerable importance where the rights of a child and adults in relation to that child are enunciated by courts.
2.38
The 1980 Family Law Act Report also stated that it was 'necessary to provide safeguards in the legislation that will limit the scope of parties and their advisers to conduct endless litigation over the rights in respect of young children'. This led to the recommendation that:
… in order to reduce as far as possible the unnecessary bitter and prolonged custody and access proceedings, [a provision should be inserted] providing that in proceedings with respect to the custody and guardianship of a child of a marriage, the court shall, as far as practicable make such orders as will avoid further proceedings.
2.39
Similarly, the 1980 Family Law Act Report recommended that, in order to facilitate the more immediate settlement of disputes over custody, criteria should be drafted that the court must consider. The report stated that:
If the outcome of custody cases was more readily predictable by the parties, their legal advisers and by court counsellors, an inducement to settlement of disputes by negotiations between the parties would be provided.
Family Law Reform Act 1995
2.40
In 1995, the then Australian Government implemented further changes to the Family Law Act through the Family Law Reform Act 1995. The legislative amendments were part of the Government's response to the 1992 report of the Joint Select Committee into Certain Aspects of the Operation and Interpretation of the Family Law Act 1975. The Family Law Reform Act also repealed and replaced Part VII of the Family Law Act to establish a new approach to dealing with children.
2.41
The amendments sought, inter alia, to:
facilitate the greater use of mediation, counselling and arbitration, in the resolution of family law disputes, both within the court and in approved organisations in the community; and
replace the concepts of custody and access, which carry ownership notions and may lead to the belief that the child is a possession of the parent who is granted custody, with the notion of parental responsibility which reflects the duties, powers, responsibilities and authority which by law parents have in relation to their children.
2.42
An interim Report by researchers at the University of Sydney into the Family Law Reform Act stated that the amendments to Part VII were intended to achieve the following objectives:
to effect an attitudinal shift, particularly to encourage both parents to remain involved in the care of their children after separation, and to see them continuing to share their parenting responsibilities despite their separation;
to reduce disputes between parents following separation, by removing the proprietary notion of children inherent in custody battles. Underpinning this aim is the idea that neither parent should be considered more important, regardless of where the children live or who is the child's primary carer;
to emphasise the idea that children have 'rights', while parents have 'responsibilities' by directing attention to the rights and interests of children rather than the needs and concerns of their parents in post-separation arrangements and decision making;
to encourage parents to enter into private agreements about the future care of their children, through the use of 'primary dispute resolution', rather than resorting to a litigated solution; and
to ensure that contact would not expose people to a risk of violence because of inconsistent contact orders and 'family violence orders', and to ensure that evidence of domestic violence is taken into account when making parenting orders.'
Family Law Amendment (Shared Parental Responsibility) Act 2006
2.43
The Family Law Amendment (Shared Parental Responsibilities) Act 2006 (Shared Parental Responsibilities Act) responded to recommendations of the 2003 House of Representatives Standing Committee on Family and Community Affairs report, Every picture tells a story. The AGD provided this summary of the 2006 reforms:
In 2006, the then Government implemented changes to the Family Law Act through the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), and significant changes to the family relationship services system. In broad terms, the aim of the reforms was to bring about 'generational change in family law' and a 'cultural shift' in the management of parental separation, 'away from litigation and towards co‑operative parenting'. The changes were partly shaped by the recognition that the focus must always be on the best interests of the child and that many of the disputes over children following separation are driven primarily by relationship problems rather than legal ones and are often better suited to community-based interventions.
2.44
The policy objectives of the 2006 changes included:
… encouraging greater involvement by both parents in their children's lives after separation, and also protecting children from violence and abuse; and helping separated parents agree on what is best for their children (rather than litigating), through the provision of useful information and advice, and effective dispute resolution services.
The changes to the service delivery system included the establishment of 65 Family Relationship Centres throughout Australia, the Family Relationship Advice Line and Family Relationships Online, funding for new relationship services, and additional funding for existing relationship services.
2.45
The AGD stated that the 2006 legislative changes comprised four main elements that:
required parents to attend family dispute resolution before filing a court application, except in certain circumstances, including where there are concerns about family violence and child abuse
placed increased emphasis on the need for both parents to be involved in their children's lives after separation through a range of provisions, including the introduction of a presumption in favour of equal shared parental responsibility, with a linked obligation on courts to consider making orders for equal or substantial and significant time when orders for equal shared parental responsibility pursuant to the presumption were made
placed greater emphasis on the need to protect children from exposure to family violence and child abuse, and
introduced Division 12A of Part VII of the Family Law Act, which enshrines a series of powers, duties and obligations that are intended to support court proceedings in relation to children's matters being conducted in a less adversarial manner.
Family Law Amendment (Family Violence and Other Measure) Act 2011
2.46
In its submission, AGD described the purpose of the Family Law Amendment (Family Violence and Other Measures) Act 2011 which:
… aimed to better support the disclosure of concerns about family violence, child abuse and child safety by parents engaged in the family law system, and to encourage professionals to respond to disclosures in a manner that prioritises protection from harm.
The reforms responded to a number of reports indicating that the Family Law Act was not adequately protecting children and other family members from family violence and child abuse.
2.47
The AGD provided the committee with the following summary of the 2011 reforms:
The Act was amended to, among other things:
broaden the definitions of 'family violence' and 'abuse';
clarify that in determining the best interests of the child, greater weight is to be given to the protection of children from harm where this conflicts with the benefit to the child of having a meaningful relationship with both parents after separation;
improve reporting requirements and obligations with a view to ensuring the family courts would have better access to evidence of abuse and family violence;
amend the additional best interests consideration relating to family violence orders; and
amend or repeal provisions that might have discouraged disclosure of concerns about child abuse and family violence.
Recent reviews of the family law system
2.48
As noted in Chapter 1, the two most recent reviews into the Family Law Act have been the 2017 Family Violence Report and the ALRC's Family Law for the Future–An Inquiry into the Family Law System (ALRC 2019 Report).
2017 Family Violence Report
2.49
As noted above, in December 2017, the House of Representatives Standing Committee on Social Policy and Legal Affairs presented the report for its inquiry into how Australia's family law system can better support and protect those affected by family violence. The report made 33 recommendations and advocated 'for an accessible, equitable and responsive family law system which better prioritises the safety of families.'
2.50
In line with the issues that this committee has heard to date, the report identified a number of key concerns about the family law system's approach to family violence, including:
the adversarial system is inappropriate for resolving family law disputes;
it does not respond appropriately to reports of family violence;
it is inaccessible for most families [due to the legal fees and complex court procedures];
it is open to abuse of process, including ongoing coercion and control of victims;
it does not respond sufficiently to perjury and false allegations; and
the structure and interaction with other jurisdictions including the state and territory family violence legislation and child protection systems is fragmented, leading to inconsistent approaches and exposing families to a greater risk of harm.
2.51
Proposals in the 2017 Family Violence Report respond to these key concerns in the following way:
a nationally developed risk assessment tool for use across the family law system and by all professions working within and adjacent to the family law system;
greater use of legally‑assisted family dispute resolution for families affected by family violence, thereby reducing the number of cases which proceed to court, which frequently leads to lengthy delays in resolving disputes and prohibitive costs;
reform to ensure that the determination of family violence occurs earlier in proceedings, which must be supported by a stronger initial assessment of risk;
improved case management of family law matters involving family violence, including the adoption of a single point of entry to the federal family courts so that cases may be appropriately triaged and actively case managed;
implementation of more uniform rules and procedures to reduce complexity as well as stronger referral pathways and penalties for abuse of process, perjury and non‑compliance with court orders.
2.52
The 2017 Family Violence Report also included other recommendations for reform that are relevant to this committee's terms of reference, such as:
an expanded information sharing platform that would include state and territory domestic violence orders, orders issued under the Family Law Act and orders issued under state and territory child protection legislation;
the impact of family violence be expressly considered in all aspects of property division and an early resolution process for small claim property matters be adopted;
to abolish private family consultants, with family consultants to be only engaged and administered by the Court itself and an agreed fee schedule be developed to regulate the costs of family reports and other expert witnesses;
that the Australian Government develop a national and comprehensive professional development program for judicial officers from the family courts and from states and territory courts that preside over matters involving family violence, as well as a national, ongoing, comprehensive, and mandatory family violence training program for family law professionals, including court staff, family consultants, Independent Children's Lawyers, and family dispute resolution practitioners; and
that it is critical for children's perspectives to be provided to courts and recommended further exploration of this issue by the Australian Law Reform Commission's review of the family law system.
2.53
The AGD advised the committee that as at 6 December 2019, of the 33 recommendations made, 18 recommendations have been implemented in full or in part, 13 recommendations are currently under consideration, and the remaining two recommendations are not Australian Government recommendations.
ALRC 2019 Report
2.54
On 27 September 2017, the then Attorney-General, Senator the Hon George Brandis QC announced that he had 'commissioned the [ALRC] to undertake the first comprehensive review of the family law system since the commencement of the Family Law in 1976'. The then Attorney-General stated:
The review of the family law system will be broad and far reaching, focusing on key areas of importance to Australian families. These include ensuring the family law system prioritises the best interests of children, best addresses family violence and child abuse, and supports families, including those with complex needs to resolve their family law disputes quickly and safely while minimising the financial burden.
2.55
The ALRC produced an Issues Paper in March 2018 and a Discussion Paper in October 2018, before delivering its final report in March 2019 which contained 60 recommendations. The Discussion Paper 'proposed a public health approach to frame changes to the family law system' comprising primary, secondary, and tertiary interventions. However, in the Final Report the ALRC, while considering that the family law system 'should focus on strengthening its primary and secondary responses,' focussed primarily on tertiary issues. With regard to primary and secondary interventions, it stated:
Important though these initiatives are, they sit within the broader conceptualisation of a family 'wellbeing' system, which is underpinned by the family law. They are the 'clinical and social services' that support separating families. As such, they do not lend themselves readily to law reform. The law cannot, and cannot be expected to, provide a solution to the complex emotional, cultural, social, health, and economic issues that underlie the breakdown of an intimate relationship. The ALRC agrees that the notion of 'complex needs' in family law is not intrinsically linked to legal complexity, and that 'funnelling families with … co-occurring psycho-social needs into the courts' is a failure to respond properly to the needs of the family. A law reform commission has neither the expertise nor the mandate to address the underlying matters of human behaviour and circumstance that cause this complexity (such as mental health, homelessness, poverty, substance misuse, violence, and criminality).
The law is, however, the last resort when primary and secondary levels of intervention have not assisted parties to resolve their disputes—a proposition which seems to be accepted even by stakeholders who reject the current legal paradigm. The ALRC has therefore focused its attention at the tertiary level.
2.56
The ALRC recommendations were based on a harm minimisation approach. In the media release announcing the release of the final report, the ALRC stated that implementing the 60 recommendations will:
promote an integrated court response to family law matters, child protection matters and matters involving family violence, providing better protection to individual litigants and their children;
assist separated couples and the courts to arrive at parenting orders that promote the best interests of the child;
assist separated couples to understand and comply with parenting orders, reducing conflict thus contributing to the welfare of children;
increase the proportion of separated couples who are able to resolve their parenting matters, and property and financial matters, outside the courts through a process that ensures fairness and reduces ongoing conflict;
reduce acrimony, cost and delay in the adjudication of family law disputes through the courts and ensure family law matters are subject to rigorous case management by the courts to reduce delay and cost; and
ensure that families who seek assistance from the family law system with legal and other support needs receive that support in a coordinated and efficient manner.
Recent and current initiatives in the family law system
2.57
There are currently a large number of reforms to the family law system being pursued by the Australian Government, but which are in their infancy and have yet to be evaluated. The AGD has provided the committee with a summary of 17 reforms recently implemented or in the process of being implemented by the Government. These reforms relate to parenting and property matters, family violence, legal assistance and structural reform of the courts and include:
a small claims property pilot of a simpler and quicker process for distributing property of less than $500 000 between parties following a relationship breakdown from January 2020 to December 2021;
increased property mediation with ongoing funding for FRCs to undertake family law property mediation and funding for Legal Aid Commissions to conduct a two year pilot from January 2020 to December 2021 of lawyer‑assisted property mediation for matters with a property pool of up to $500 000, excluding debt;
funding from 1 June 2017 to 30 June 2020 for pilots of legally-assisted and culturally appropriate family dispute resolution services for parenting matters for Indigenous and Culturally and Linguistically Diverse families who have experienced family violence;
the piloting from January 2020 of the co-location of state and territory child protection and policing officials, in family law courts across Australia to increase the information on family violence being shared between these systems; and
funding to represent parties to a family law hearing who are subject to the ban on direct cross-examination under Part XI Division 4. The implementing legislation requires this Division to be reviewed as soon as possible two years after commencement.
2.58
A number of these measures are aimed at providing support to parties to resolve their parenting, property and other disputes without resorting to contested court proceedings. All of them are aimed at improving the engagement of parties with the family law system. However it is too early to understand the impact that these reforms will have on the system.
2.59
In addition to these reforms, the AGD also provided evidence about an additional reform that is to be piloted in the Federal Circuit Court. The Australian Government has committed $13.5 million over three years to pilot a screening and triage program for matters being considered by family law courts, with three interconnected processes: screening parenting matters for family safety risks at the point of filing; triaging matters to an appropriate pathway based on the identified level of risk; and maintaining a specialist list to hear matters assessed as involving a high risk of family violence. The pilot will commence soon and is expected to be operational in three registries initially, the Parramatta, Brisbane and Adelaide registries (which together constitute 42 per cent of filings in the Federal Circuit Court).
2.60
To support the effecting implementation of this triage pilot, the Government introduced the Family Law Amendment (Risk Screening Protections) Bill 2020 into Parliament on 26 August 2020. The Bill will amend the Family Law Act to:
ensure that information obtained or generated through the risk screening process cannot be disclosed, except in limited circumstances, such as where disclosure is necessary to protect a child from the risk of harm, or to prevent or lessen serious threats to the life, health or property of a person;
ensure that information obtained or generated through the new risk screening process is inadmissible in any court or tribunal, except where the family safety risk screening information or evidence indicates that a child has been abused or is at risk of abuse; and
provide immunity for court officials, such as registrars and family counsellors, when undertaking new non-judicial roles as part of the risk screening process.
2.61
These measures are all consistent with existing family counselling provisions of the Family Law Act and will ensure that parties are able to freely and confidentially participate in the processes being trialled in the pilot and that court workers are appropriately supported to carry out their new functions.
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Two new services that have been positively piloted and evaluated in the last few years by the Australian Government and have therefore been continued are the Family Advocacy and Support Service (FASS) and Domestic Violence Units and Health Justice Partnerships.
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The Australian Government provided $18.5 million over three years
(2016–2019) for legal aid commissions to establish the FASS in family law court registries and other locations across Australia. This is an initiative that increases the capacity of duty lawyer services in family law court registries and integrates family violence support services, to help families affected by family violence with matters before the family law courts.
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After a positive independent evaluation released in October 2018, the Australian Government committed a further $22.6 million to extend the FASS for three years from 1 July 2019, as well as $7.84 million over three years for dedicated men's support workers to be engaged in all FASS locations. The dedicated men's support workers provide access to appropriate support services for both alleged perpetrators and male victims of family violence involved in family law proceedings, including parenting programs and men's behavioural change programs.
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To help vulnerable women receive the legal advice and support they need, the Australian Government is providing ongoing funding to 17 community legal service providers to deliver specialist domestic violence units and health justice partnerships in 21 locations around the country plus one online model in Victoria. Specialist domestic violence units provide front-line legal assistance and other holistic support, tailored to each woman's circumstances. The units assist clients to access services such as financial counselling, tenancy assistance, trauma counselling, emergency accommodation, and employment services. Health justice partnerships involve lawyers working at hospitals and health centres, to ensure women can access legal assistance in a safe location. Lawyers are also training health professionals to recognise when women have legal problems related to domestic violence, and to help facilitate their access to specialist legal assistance safely.
Related reforms
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A number of the initiatives discussed above have been funded through the following family safety initiatives and programs: the National Plan to Reduce Violence Against Women and their Children 2010–2022, and the Women's Economic Security Package.
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The National Plan to Reduce Violence against Women and their Children 2010–2022 was endorsed by the Council of Australian Governments (COAG) and released in February 2011. The National Plan is being delivered over 12 years through a series of four three-year action plans and brings together the efforts of governments across Australia to make a real and sustained reduction in the levels of violence against women.
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On 9 August 2019, the COAG endorsed the Fourth Action Plan of the National Plan to Reduce Violence against Women and their Children 2010–2022, agreeing on five national priorities to reduce family, domestic and sexual violence.
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On 20 November 2018, the Australian Government announced a package of measures to improve women's economic security. The Women's Economic Security package is built around the following three pillars:
increasing women's workforce participation;
supporting women's economic independence; and
improving women's earning potential.
Proposal to merge the Family Court and the Federal Circuit Court
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On 5 December 2019, the Australian Government introduced the Federal Circuit and Family Court of Australia Bill 2019 (the FCFC Bill) which proposes unifying the administrative structure of the Family Court and the Federal Circuit Court to create the Federal Circuit and Family Court of Australia, comprised of Division 1 (which will be a continuation of the Family Court) and Division 2 (which will be a continuation of the Federal Circuit Court). The Attorney–General, the Hon. Christian Porter MP, explained the benefits of these reforms in his second reading speech:
[This legislation] will reduce the costs and delays that thousands of Australian families experience as a result of a split federal family law court system. This legislative package will create greater efficiencies in the federal family law court system and, in turn, assist families navigating the court system during what can be some of the most difficult and distressing times of their lives.
… This bill creates a consistent pathway for Australian families in having their family law disputes dealt with in the federal courts. Under the government's reforms, there will be a single point of entry for the federal family law jurisdiction and, ultimately, a common set of rules, procedures, practices and approaches to case management. The reforms enabled by these bills will improve user experience for those Australian families that unfortunately need the assistance of the courts to resolve their disputes and promote improved practices by both courts and legal practitioners.
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In addition, the FCFC Bill provides that the overarching purpose of the family law practice and procedure provisions within the legislation is to facilitate the just resolution of disputes according to the law and as quickly, inexpensively and efficiently as possible. Parties will be required to act consistently with the overarching purpose, and courts will have the power to make an order that a party's lawyer bear costs personally if the lawyer fails to take account of the duty or assist the party to comply with the duty.
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The FCFC Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 20 November 2020.