Is this the future of family law? Overview of the ALRC Report

The Australian Law Reform Commission’s (‘ALRC’) Final Report, Family Law for the Future – An Inquiry into the Family Law System was publicly released in April. Described as the first ‘comprehensive’ review of the family law system since the passage of the Family Law Act 1975 (Cth) (‘FLA’) (p 29), the inquiry had been referred to the ALRC by then Federal Attorney-General George Brandis in September 2017.

The ALRC described the Terms of Reference as encompassing four different ‘themes’: protection of vulnerable parties; improving dispute resolution (including court) processes; strengthening the ‘integrity’ of the family law system, including rules of evidence and procedure, and review and appeal mechanisms; and family law services more broadly (p30). In March 2018 it released an Issues Paper, commencing the process of public consultation. Ultimately, wide-ranging consultations were held, including via an online portal whereby individuals could disclose their own experiences of the family law system. In October 2018, the ALRC released a Discussion Paper (‘DP’) which sought comment on various proposals and asked further questions, though some of the proposals of the DP are quite different from the 60 final recommendations made in Family Law for the Future.

A large part of the ALRC Inquiry occurred against a backdrop of proposals to merge the Family Court and Federal Circuit Court. Announced by Attorney-General Christian Porter in May 2018, the merger legislation was ultimately not passed by the Senate in its final sitting days before the election was called. The ALRC also underwent some changes of personnel during the Inquiry including the original Commissioner-in-Charge, Professor Helen Rhoades, standing down and being replaced by the President of the ALRC, Justice Sarah Derrington. Two of the Commissioners expressed ‘dissenting views’ on some of the final recommendations.

Key findings and recommendations

It is a theme of Family Law for the Future that adequate funding for the family law system is imperative. This reflects concerns expressed for decades about the under-resourcing of family law courts and associated services. The ALRC noted that some of its recommendations will require increased funding – for example, for Family Consultants, Independent Children’s Lawyers (‘ICL’s) and Indigenous Liaison Officers. The ALRC also explained that the proposal for the creation of state family law courts (discussed below) is not intended to be necessarily cost-saving.

The ALRC makes an overarching recommendation that the entire FLA be redrafted – not substantively changed but simplified and reorganised. Having been amended by 115 different Acts of Parliament, the FLA is confusing, even for lawyers. Generally, the ALRC has emphasised that it is of special importance that family law be accessible not just to those litigating or accessing legal advice but more broadly. This is reflected in some of its recommendations for legislative change around post-separation parenting and property, and in case management and dispute resolution.

Parenting and children’s matters

Key reforms proposed for parenting matters include removing the ‘objects and principles’ section (s 60B) and simplifying the ‘best interests checklist’ in s 60CC by reducing the number of items and removing the distinction between ‘primary’ and ‘additional’ considerations. The first item in the cut down list would be for the court to consider arrangements that best promote a child’s safety, including safety from violence. The present references to ‘meaningful’ relationships (in ss 60B and 60CC(2)(a)) would therefore be removed, and the item referring to the benefit to a child of maintaining relationships with parents and others modified by the express statement ‘where it is safe to do so’.

The ALRC also recommends removal of a key element of the Family Law (Shared Parental Responsibility) Act 2006 (Cth) changes, the presumption of equal shared parental responsibility. While it would be replaced by a presumption of ‘joint decision making about major long-term issues’, the court would no longer be required to consider certain time arrangements as a consequence.

Largely, these reforms appear to have simplification as their goal, in a context of people working out their own arrangements without necessarily obtaining legal advice. In some ways they reflect earlier times when judicial discretion was less directed. The ALRC recommended better, evidence-based information as to how to devise care arrangements which are in children’s best interests be available for people seeking to make such decisions.

At the same time, the ALRC made recommendations about improving compliance with parenting orders. This includes mechanisms for the continuing involvement of Family Consultants after contested orders have been made (noting that lack of understanding is often a reason for poor compliance) but also making appeals against interim parenting orders more difficult by imposing a requirement to seek leave.

Property disputes

As with some of the reforms proposed for children’s matters, a focus for the ALRC seems to have been how to assist and guide people who are trying to manage their affairs post-separation without engaging a lawyer or necessarily having had legal advice. Ten recommendations are aimed at simplifying property division post-separation. One significant reform proposal is to introduce a presumption of equal contributions to property, including to superannuation, with a list of factors which might go toward displacing that presumption. While intended to make division more straightforward, former Chief Justice of the Family Court, the Hon. Diana Bryant AO QC, has commented that this approach is overly simplistic and will simply reframe disputes as being about whether the presumption applies (quoted in N Berkovic, ‘The Hardest Part of Breaking Up’, The Australian, 23 April 2019, p 10). Commissioner Geoffrey Sinclair likewise expressed dissenting views on this proposal, wherein he doubted the utility of a presumption of equality. The ALRC has also recommended a presumption that property is to be valued at the date of the parties’ separation, rather than at the date of hearing as reflects the law at present.

Another recommendation is to introduce a ‘compensatory framework’ for family violence, including the creation of a statutory tort of family violence. This recommendation stems from the ALRC’s findings that the FLA and the principle in Kennon & Kennon (1997) 22 Fam LR 1 do not sufficiently address the economic impact of family violence. The ALRC proposes that the tort be established within Part VIII of the FLA, empowering the family law courts to hear the claim simultaneously with property proceedings. This would obviate the need for a claimant to bring a separate civil action.

Pre-action procedures and alternative dispute resolution

In relation to property disputes, the ALRC recommended including a requirement for parties to undertake genuine steps toward resolution, prior to filing. This would bring property disputes more into line with both parenting disputes – where parties are required to undertake Family Dispute Resolution (‘FDR’), unless an exception applies – and other civil disputes under the Civil Dispute Resolution Act 2011 (Cth). The ALRC has recommended extending FDR and Legally Assisted Dispute Resolution to property disputes and, as part of this, recommended clarity around the confidentiality of FDR, and recognition of ‘protected confidences’ – to reflect the importance of confidentiality in promoting therapeutic engagement.

While the DP had proposed the creation of ‘Families Hubs’ – a kind of one-stop shop for separating couples – this was dropped in the Final Report. Instead, the ALRC recommended reinvigorating some existing or previously existing mechanisms, such as the Less Adversarial Trial for parenting matters; and better resourcing and support for existing support services within and outside the courts. This would allow Family Relationship Centres to take on the holistic service delivery role which the DP had envisaged for the Hubs. Family Law for the Future does recommend the creation of a specialised list for matters deemed ‘high risk’ but which do not fit the criteria to be included in the Magellan list.

Several recommendations are aimed at increasing the use of arbitration, including its extension to children’s matters in some cases. The ALRC suggests that the fact that arbitration has not been taken up more widely already – given the workload of the courts, and corresponding delays – may be due in part to the attitudes of legal practitioners.

Case management and professional expertise

The ALRC recommends the FLA include a provision setting out the ‘overarching purpose of family law practice and procedure’, being to facilitate timely, just and inexpensive resolution of disputes, while minimising acrimony, and harm to children and families. A statutory duty would be imposed on parties (and third parties) and their lawyers to uphold this overarching purpose. The ALRC also recommends removing the presumption in s 117 of the FLA that parties in family law proceedings each bear their own costs; more clearly setting out the costs consequences for failure to make proper and timely disclosure; and introducing a presumption that costs will follow a finding that a person has contravened an order.

The Final Report emphasises that everyone who works in the family law system needs skills in promoting conciliation and reducing conflict. This echoed the DP, which included a chapter on the importance of appropriate skills for the family law workforce. In response to concerns that some family lawyers have ‘gaps’ in their knowledge of family violence – including lawyers dealing primarily with property disputes – the ALRC recommends that family lawyers be obligated to undertake continuing professional development specifically about family violence. The ALRC also recommended that the National Guidelines for Independent Children’s Lawyers be strengthened by imposing a legislative obligation on ICLs to comply with them, as a means of ensuring ICLs’ expertise.

In terms of other professionals working in family law, it is recommended that non-court-based family report writers be subject to a national accreditation scheme; and that there should be appropriate consultation with Indigenous communities to identify suitable persons, in different regions, to prepare cultural reports for children of Aboriginal and Torres Strait Islander heritage.

State family law courts

The largest structural change proposed by the ALRC is for the establishment of state and territory family courts, with consideration to be given to eventually abolishing first instance federal family law courts. These state family courts could also exercise jurisdiction over family violence and child protection.

The ALRC had not been specifically asked to consider the structure of the family law courts. However, the Terms of Reference did include ‘collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems’ (p112). Moreover, the ALRC explained, the same ‘major themes’ have emerged over the course of a multitude of reports into aspects of the family law system: failure to deal well with family violence; the need for better information sharing between family courts and state and territory child protection agencies; and the need for family law, family violence and child abuse matters to be heard together. The ALRC commented that despite these recurring themes, ‘the fundamental challenges … have not attracted sufficient political will to solve the problems’ (p 111).

The Australian Constitution gives the federal Parliament powers over marriage, and ‘divorce and matrimonial causes’ (s 51(xxi) and (xxii)). The criminal jurisdiction and child protection remain with the states and territories. To create unified courts which could deal with all these issues in one place, the ALRC was of the view that the only viable option is to enable the exercise of federal jurisdiction by State and Territory Magistrates’ Courts (Local Courts, in NSW and NT) and Children’s Courts. The ALRC noted that the FLA already permits the establishment of State Family Courts to exercise the same jurisdiction as the Family Court of Australia, but only Western Australia has exercised this option.

The ALRC’s recommendation is therefore for all the States and Territories to either establish state family courts, or create divisions of existing courts to exercise jurisdiction under the FLA. Legislative responsibility would, however, be retained by federal Parliament. The ALRC also recommended keeping the requirement for specialist family law expertise which at present applies to judges of the Family Court (FLA s 22(2)(b)), should devolution proceed; as well as the use of a single set of court rules for courts hearing family law matters. In terms of the rules, the present Chief Justice of the Family Court (who is also the Chief Judge of the Federal Circuit Court) has said that the two courts are working on developing a single set of rules (Berkovic, above).

Commissioner John Faulks, the former Deputy Chief Justice of the Family Court, expressed a dissenting view on these recommendations. He proposed instead the simplification of pathways between courts, increased triage and better information sharing – for a family’s file to ‘travel with them’. The ALRC also recommended the development of a national information sharing framework but emphasised this could not substitute for proper address of jurisdictional gaps.

Conclusion

There is much food for thought in the 580+ pages which comprise Family Law for the Future. A number of the ALRC’s recommendations would entail significant changes for the practice of family law. Broadly speaking, recommendations aimed at simplifying family law processes and increasing accessibility are to be welcomed, as are the ALRC’s comments about adequate resourcing of family law courts and services. As to whether there is any political appetite for the more substantial changes that have been recommended, only time will tell.

Dr Felicity Bell is a Research Fellow for the Law Society of NSW’s Future of Law and Innovation in the Profession (FLIP) research stream at UNSW. Her research background is in family law.