Reform of family law

Catherine Lorimer, Law and Bills Digest

Key issue
Due to the increasing number of complex cases and funding and staffing shortfalls, those federal courts with family law jurisdiction are currently overburdened. This creates delay and exacerbates frustration and conflict for the litigants. The timely and cost effective resolution of family law matters is a key area for reform. Disputes involving child protection and family violence issues have increased resulting in a large backlog of cases. A recent ALRC report recommends a radical proposal of a ‘one-stop shop’ approach. This follows an earlier Government proposal to restructure the Family Court of Australia to address these problems.

Introduction of the Family Law Act 1975

The Family Law Act 1975(FLA), which came into force on 5 January 1976, was premised on the need to reform divorce law to eliminate fault, simplify procedures and reduce cost. It contained two significant reforms that changed the approach to marriage breakdown in Australia: the introduction of no-fault divorce, and the establishment of a specialist, multi-disciplinary court for the resolution of family disputes–the Family Court of Australia (FamCA).

The FLA had a lengthy genesis with considerable parliamentary debate and scrutiny that reflected the tension between the divorce and reconciliation provisions. It was controversial and revolutionary at the time, as it was seen by some to be attacking the institution of marriage. However, there was also pressure for significant social change coupled with distaste with the existing, fault-based divorce procedures. The FLA introduced a single ground for divorce—the irretrievable breakdown of marriage. This was demonstrated by a 12 month separation period between spouses. There were also provisions for the distribution of property and the custody and maintenance of children.

The FamCA was intended to be a ‘helping court’ that would specifically meet the needs of people experiencing family breakdown, including the provision of counselling.

Current issues and the case for reform

The FLA was first reviewed three years after it commenced. Since then it has been the subject of numerous independent and government reviews and legislative amendments. This has resulted in a complex Act. In recent times, issues of children and shared parental responsibility, and family violence have been the subject of legislative reform.

All of these earlier reviews and reports have identified substantially the same fundamental issues and have made similar recommendations over a period of almost two decades.

Court structure

There are currently two regimes to deal with family law disputes: a federal regime that deals primarily with parenting and property matters (adjudicated under a federal court structure); and state and territory regimes that are responsible for child protection and domestic violence laws (with state and territory courts vested with jurisdiction to deal with those matters). Those who advocated for a federal family court in 1974 could not have foreseen the growth in the reported incidence of child abuse and family violence that has occurred in Australia in the ensuing decades. There is criticism that the current fragmented system is unfit for purpose.

In the federal family courts (FamCA and the Federal Circuit Court of Australia) family violence, child abuse or other complex factors now make up the majority of cases. Under the current system, children can fall through the gaps between the family law courts, the child protection systems and the state and territory responses to violence. The federal family courts have limited investigative powers to follow up allegations that indicate potential safety risks and are reliant on receiving information from state and territory courts and agencies about risks to families and children. However, there are significant barriers to information sharing between systems at present. This fractured approach can result in duplicated processes with increased costs and delays for the parties and can put children at risk.

Parenting orders

The determination of parenting arrangements has been criticised for being too complex and confusing. Parenting orders are currently determined by reference to complex statutory provisions and a lengthy list of factors to be considered by a judge. In particular the statutory presumption for ‘shared parental responsibility’ has been conflated with a presumption for equal time with a child. Under the FLA principles, the primary consideration for all children, when determining living arrangements and time with parents, should be what is in the best interests of the children.

Time delays

The time taken to resolve family law disputes has increased often due to the complex factors involved. The cost of legal representation and limited access to legal aid have contributed to larger number of self-represented litigants who can have difficulties navigating the FLA.

There is also a reported shortage of judges and registrars to hear these matters. These factors have resulted in a backlog of about 20,000 cases to be heard and determined. This has been addressed to some extent by a number of recent appointments to the FamCA, however further resources are still required.

Some key recommendations from two recent reports seek to address these issues.

ALRC review of the family law system

In September 2017, the Turnbull Government announced a comprehensive review of the family law system. The Australian Law Reform Commission (ALRC) was commissioned to undertake the review with broad terms of reference. The ALRC’s final report into the family law system was publicly released on 10 April 2019. This landmark report made 60 recommendations for reform.

Structural reform of court structure

The first recommendation of the report proposes that the resolution of family law disputes be returned to the states and territories and that the federal family courts eventually be abolished. This radical and potentially controversial proposal is for a new system of state courts which would essentially provide a one-stop shop. The principal aim of the new state Family Courts is to be able to resolve all family law, child protection and family violence issues together. The Family Court of Western Australia provides an example of how a ‘one-court, one family’ model could operate.

The ALRC report notes that constitutional and pragmatic considerations dictate that the devolution of family law jurisdiction to state and territory courts is the best available pathway.

The implementation of this proposal would require the federal government to negotiate with the states to create these new specialist state courts that could handle all three areas. An advantage of creating new state courts would be that state judges could make orders under the federal FLA as well as under state domestic violence and child protection laws. It is envisaged the existing judges of the federal family courts would also receive state Family Court commissions.

The ALRC notes that this radical structural reform of the family law system has consequences of significant magnitude and would take significant time to implement.

In relation to the proposed structural reform, the Law Council of Australia (LCA) suggests that ‘any transfer of family law jurisdiction to state and territory courts as suggested by the ALRC will be a five-to-10-year project.’ The LCA is concerned that, while the recommendations of the ALRC report are considered by the incoming Government, the immediate crisis in Australia’s family law system due to a ‘lack of resourcing, poor planning and outdated court rules’ will not be addressed as a matter of urgency.

Some commentators consider that the radical restructure proposal makes a great deal of sense and addresses many of the issues identified from earlier reviews and reports. One academic opines that ‘the ALRC’s report offers a clear and coherent way forward for the federal government. It is worthy of the most careful consideration by all politicians concerned about improving the system’.

However, other commentators have stated that unwinding the federal family court system would be like ‘”unscrambling 1,000 eggs”—and that obtaining the agreement of the commonwealth, state and territory governments, as well as judges, would be a “herculean task”’.

Parenting orders

Another controversial recommendation is to overhaul the existing shared parenting laws introduced in 2006. This includes, in particular, the repeal of provisions which require judges in certain cases to consider whether children should spend equal time, or substantial and significant time, with each parent.

The ALRC recommends reducing the number of matters that a judge must consider when deciding what is in the best interests of a child regarding parenting orders. However, any move away from the presumption of equal shared parenting is likely to be opposed by some stakeholder groups such as the Lone Fathers’ Association.

Distribution of property and superannuation

The report also contains recommendations to simplify the approach to property division. This includes amending the FLA to include a new presumption of equality of contributions during the relationship. With regard to superannuation, there is a recommendation to amend the FLA to provide a presumption that the value of superannuation assets accumulated during a relationship are to be split evenly between the parties.

Rewrite of the FLA

The ALRC report recommends that the FLA and its subordinate legislation should be comprehensively redrafted to improve its usability for all readers of the legislation.

Court restructure proposal

In May 2018, at the same time the ALRC was undertaking its review, the Attorney-General announced major structural reform to the handling of family law matters in the federal court system.

The Government proposed the establishment of a new Federal Circuit and Family Court of Australia (FCFCA) through the amalgamation of the existing Federal Circuit Court of Australia and the Family Court of Australia. The FCFCA would provide a single point of entry for all federal family law matters—one court with one set of rules, procedures and practices to ensure ‘disputes will be dealt with … in the most timely, informed and cost effective manner’. The key objectives of this proposal were to improve the efficiency of the existing split family law system and reduce the backlog of cases.

In August 2018 the Government introduced the Federal Circuit and Family Court of Australia Bill 2018 to implement this reform. However, the 45th Parliament was prorogued before the Senate could debate the Bill. At the time, these reforms faced fierce opposition from the legal profession. This was because the proposed reforms were developed with no consultation with family court lawyers, judges, families or advocacy groups. The LCA was strongly opposed to the proposed reforms and stated that ‘Australian families were better off with a stand-alone, specialised Family Court’.

The Senate Committee report into the proposed legislation recommended a number of changes be made to Bill before it be passed.

Commitment to reform

In April 2019, the Attorney-General stated that the:

… Government will remain fully committed to a clear path forward of merging the Federal Circuit Court with the Family Court into a single, new and more efficient court and would also be fully committed to considering and developing individual responses to the complex issues raised in the 60 recommendations made in the final ALRC report.

Reform of family law

Introduction of the Family Law Act 1975

Current issues and the case for reform

Court structure

Parenting orders

Time delays

ALRC review of the family law system

Structural reform of court structure

Parenting orders

Distribution of property and superannuation

Rewrite of the FLA

Court restructure proposal

Commitment to reform

Further reading