The Australian Law Reform Commission (“ALRC”) will issue its Discussion Paper in October 2018 in relation to the pending Family Law System Inquiry (also known as the ‘Family Law System Review’). The Discussion Paper will set out the Commission’s preliminary proposals for reform and invite feedback from all sections of the community.
What can we expect from the Discussion Paper? A recent presentation by one of the ALRC Commissioners, Professor Helen Rhoades at the Australian Institute of Family Studies conference in Melbourne provides some signposts.
The Inquiry’s terms of reference, framed by the Government in May 2017, asked the Commission to consider a broad range of matters, including the following:
In summarising concerns raised in submissions to the Inquiry’s initial Issues Paper, Rhoades identifies 5 areas of concern. It is possible to interpret the concerns as objectives that may underscore the recommendations that will be published at the conclusion of the Inquiry in the Commission’s Final Report (due to be delivered to the Attorney-General by 31 March 2019.) The 5 areas of concern are:
Apart from the Government’s contemplation of a single Court to deal with family law cases, which the Government has undertaken separate to the Family Law System Review, what are the actual elements of the family law system that may change? Here are 3 possibilities that we have identified:
a) The legislative framework in parenting cases under Part VII of the Family Law Act (Cth) 1975 is likely to be simplified. Why? Amendments to the Act in 2006 introduced a ‘presumption of equal shared parental responsibility’ which also became the means by which the Court is required to consider whether ”equal shared time” or ”substantial and significant” time is in the best interests of the child and reasonably practicable in contested cases where the presumption applies.
Since 2010 this more complex ”legislative pathway” has been described by Judges of the Family Court as being like a ”dilemma of labyrinthine complexity”. It would be possible to simplify Part VII of the Act to make it easier to follow and work with in practice (which is important for parties preparing for mediation, not just parties and lawyers in court) while keeping shared parenting outcomes in mind.
b) The framework for our property settlement law may also be revised. Under Part VIII of the Act, the property settlement provisions are based on a ”discretionary property regime” rather than a ”community property regime.” The current ”discretionary” approach, grossly simplified, involves gathering evidence about contributions to assets and liabilities, gathering evidence about people’s needs in future, and making assessments about both of the latter in order to arrive at a ”just and equitable” outcome. It can be a time-consuming process and opinions can reasonably differ between experienced lawyers (and between Judges) in a good number of cases. The advantage however is that justice is tailored to the circumstances of the individual case, recognising that every case is different.
In contrast, a ”community” approach involves the use of fixed rules or formula, for example, that all property is automatically shared 50:50 upon relationship or marriage breakdown. There are different community property regimes in various parts of the world; what they have in common is an intent to provide greater predictability about the property settlement outcome and a more efficient process to document and implement it. Criticisms of the community approach are that it results in serious injustice in many cases and unjust outcomes disproportionately affect women more than men.
If we were to contemplate a move to a community property regime in Australia, we would see an increase in the use of pre-nuptial agreements, and other financial agreements, as people seek to avoid the potential unfairness of fixed rules and define their own settlements in the event of the breakdown of the marriage or de facto relationship.
c) Giving a stronger voice to the views of children in parenting cases. This may be done by promoting the greater use of ”child-inclusive mediation” in appropriate cases. Greater funding of child inclusive mediation would be suitable for families that are attempting to negotiate arrangements using the publicly funded Family Relationship Centres. This intervention also works well for a proportion of families that are before the court.
Back in the 1990’s, the counselling section of the Family Court of Australia provided pre-filing counselling for parents that had separated, or never lived together. Parents could avail themselves of the expertise and wisdom of family consultants employed by the Court without a court application having been filed. A client could instruct their solicitor to book a session of confidential counselling to encourage the parents to reach an early agreement about the care of the child and spend time arrangements. The agreement rate was relatively high.
If additional resources could be devoted to the courts for the courts to scale up the use of inter-disciplinary teams to work with families in high conflict, the return on investment would be satisfied by higher settlement rates and a reduction in the use of Judges. Equally if not more importantly, a return to the orientation of the Family Court as ”a helping Court” through the modern use of collaborative processes would give Registrars and Judges more options and improve outcomes for many children and parents.
Universally, clients with family law needs transition through the emotional adjustment of separation and divorce as we assist them resolve one or more of the legal issues of parenting, property settlement, spousal maintenance, divorce and child support. Please contact one of our partners if someone you know may benefit from our advice and experience.
Paul Lewis, Partner