ALRC: abolish the Family Court! The full list of recommendations
Yesterday the Attorney-General, Christian Porter tabled the report of the Australian Law Reform Commission into the Family Law System. The Commission set out 60 recommendations, the first of which was to abolish the Family Court of Australia and the Federal Circuit Court of Australia, and replace them with State and Territory courts, along the lines of the Family Court of Western Australia.
The Government has previously indicated that it is not interested in doing so.
The rationale for doing so is so that domestic violence, child protection and family law can all be held under the same banner, and not in different places.
One evident difficulty in doing so is that judges appointed to the federal courts are protected under the Constitution. They can only be removed by a joint vote of both Houses of Parliament. Otherwise, subject to ill-health or death, they can stay there until they are 70. Does that mean appointing them to a State court also, and in the process bumping up their pays and status? How else will someone be persuaded to move if they cannot be forced to do so?
And what of those who simply won’t? Are they going to continue to be paid a salary and do no work, as happened to the unfortunate industrial judge Jim Staples years ago?
The other difficulty is that any change like this also requires the co-operation of the States. Every State (other than Western Australia) has been keen to wash its hands of these aspects of family law and give them to the Commonwealth. Not one State has ever opted (other than Western Australia) to take up the standing option in the Family Law Act to have a State Family Court.
And if the States did so, it is likely that the Commonwealth would pay for it. So a Federal Attorney-General loses the power to appoint a large number of judges- and gives that power to his State counterparts- has all the complaints about the system because it is argued that he is not generous enough, and loses whatever leverage he might have in controlling that system.
No longer would State politicians be able to wash their hands of family law and say- talk to my Federal counterpart- but they would have to take an active interest in family law.
But now we are in for an election- so let’s see what that brings!
Here are the full 60 recommendations with my comments in [ ]:
Recommendation 1 The Australian Government should consider options to establish state and territory family courts in all states and territories, to exercise jurisdiction concurrently under the Family Law Act 1975 (Cth), as well as state and territory child protection and family violence jurisdiction, whilst also considering the most efficient manner to eventually abolish first instance federal family courts.
Recommendation 2 The Australian Government should work with state and territory governments to develop and implement a national information sharing framework to guide the sharing of information about the safety, welfare, and wellbeing of families and children between the family law, family violence, and child protection systems. The framework should include:
the legal framework for sharing information;
relevant federal, state, and territory court documents;
child protection records; ypolice records;
experts’ reports; and
other relevant information. [HOORAY- very sensible]
Recommendation 3 The Australian Government, together with state and territory governments, should consider expanding the information sharing platform as part of the National Domestic Violence Order Scheme to include family court orders and orders made under state and territory child protection legislation. [Sounds sensible]
Parenting
Recommendation 4 Section 60B of the Family Law Act 1975 (Cth) should be repealed. [This is the objects clause of the parenting provisions of the Act. ]
Recommendation 5 Section 60CC of the Family Law Act 1975 (Cth)should be amended so that the factors to be considered when determining parenting arrangements that promote a child’s best interests are:
what arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, or other harm;
any relevant views expressed by the child;
the developmental, psychological, and emotional needs of the child
the benefit to the child of being able to maintain relationships with each parent and other people who are significant to the child, where it is safe to do so;
the capacity of each proposed carer of the child to provide for the developmental, psychological, and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist with caring; and
anything else that is relevant to the particular circumstances of the child
[This is a much cut down list, seems to emphasise protection from violence, but not emphasise the right of the child to have a relationship with both parents. Women’s groups are likely to applaud it, but not men’s rights groups.]
Recommendation 6 The Family Law Act 1975 (Cth) should be amended to provide that in determining what arrangements promote the best interests of an Aboriginal or Torres Strait Islander child, a court must consider the child’s opportunities to connect with, and maintain the child’s connection to, the child’s family, community, culture, and country. [Very sensible.]
Recommendation 7 Section 61DA of the Family Law Act 1975 (Cth) should be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’.
[Time will tell whether any change to language will make a difference.]
Recommendation 8 Section 65DAA of the Family Law Act 1975 (Cth), which requires the courts to consider, in certain circumstances, the possibility of the child spending equal time, or substantial and significant time with each parent, should be repealed.[Good. The family law legislative pathway at the moment is far too confusing, even for judges.]
Recommendation 9 Section 4(1AB) of the Family Law Act 1975 (Cth) should be amended to provide a definition of member of the family that is inclusive of any Aboriginal or Torres Strait Islander concept of family that is relevant in the particular circumstances of the case.
[Excellent.]
Recommendation 10 Combined rules for the Family Court of Australia and the Federal Circuit Court of Australia should provide for proceedings to be conducted under Pt VII Div 12A of the Family Law Act 1975 (Cth) by judges of both courts. Both courts should be adequately resourced to carry out the statutory mandate in s 69ZN(1) of the Family Law Act 1975 (Cth). [Excellent. Let’s see if they get adequate resourcing.]
A Simplified Approach to Property Division
Recommendation 11 The Family Law Act 1975 (Cth) should be amended to:
specify the steps that a court will take when considering whether to make an order to alter the interests of the parties to the relationship in any property; [HOORAY]
and
simplify the list of matters that a court may take into account when considering whether to make an order to alter the interests of the parties to the relationship in any property. [HOORAY]
Recommendation 12 The Family Law Act 1975 (Cth) should be amended to include a presumption of equality of contributions during the relationship. [HOORAY]
Recommendation 13 The Family Law Act 1975 (Cth) should be amended to provide that the relevant date to ascertain the value of the parties’ rights, interests, and liabilities in any property is the date of separation, unless the interests of justice require otherwise. [That will be interesting about how that turns out. Currently the date is the date of trial- with argument about add backs since the date of separation. ]
Recommendation 14 The family courts and the Australian Financial Complaints Authority should develop a protocol for dealing with jurisdictional overlap with respect to debts of parties to family law proceedings. The protocol should provide that:
disputes about the enforceability of a debt against one or both parties under the National Consumer Credit Protection Act2009 (Cth) are dealt with by the Australian Financial Complaints Authority; and
disputes about the reallocation of a debt between parties to a family law proceeding are dealt with by the family courts. [Sensible]
Recommendation 15 The Privacy Act 1988 (Cth) and the National Consumer Credit Protection Act 2009 (Cth) should be amended to provide that when a court has ordered that one party (Party A) be responsible for a joint debt and indemnify the other party (Party B) against any default, credit providers are prohibited from making an adverse credit report against Party B to any credit reporting business as a consequence of the subsequent actions of Party A. [Sensible]
Recommendation 16 The Family Law Act 1975 (Cth) should be amended to provide a presumption that the value of superannuation assets accumulated during a relationship are to be split evenly between the parties. [If it seen as an equal contribution during the relationship, then the split should reflect the overall split, not a different figure.]
Recommendation 17 The Family Law Act1975 (Cth) should be amended to simplify the process for splitting superannuation including:
developing template superannuation splitting orders for commonly made superannuation splits; and
when the applicant is suffering economic hardship, requiring superannuation trustees to limit the fees they charge members and their former spouse for services provided in connection with property settlement under Pt VIII to the actual cost of providing those services. [Good stuff.]
Recommendation 18 The Family Law Act 1975 (Cth) should be amended so that:
the spousal maintenance provisions and provisions relating to the division of property are dealt with separately under the legislation; and access to interim spousal maintenance is enhanced by the use of Registrars to consider urgent applications. [But how will future factors, if at all, be taken into account on property settlement?]
Recommendation 19 The Family Law Act 1975 (Cth) should be amended to include a statutory tort of family violence that would provide remedies consistent with existing common law remedies. [Excellent. Victims of violence from their partners have been paid too little, or had to spend too much to get too little in return.]
Recommendation 20 The Family Law Act 1975 (Cth) should be amended to extend s 69ZX to property settlement proceedings. [So greater flexibility with the admissibility rules.]
Encouraging Amicable Resolution
Recommendation 21 The Family Law Act 1975 (Cth) should be amended to:
require that parties take genuine steps to attempt to resolve their property and financial matters prior to filing an application for court orders; and
specify that a court must not hear an application unless the parties have lodged a genuine steps statement. A failure to make a genuine effort to resolve a matter should have costs consequences. [Provided there are safeguards- sensible stuff.]
Recommendation 22 Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), which refers to ‘equality of bargaining power between the parties’, should be amended to refer to the ‘equality of bargaining power between the parties, including an imbalance in knowledge of relevant financial arrangements’. [Sensible]
Recommendation 23 The Family Law Act 1975 (Cth) should be amended to require Family Dispute Resolution Providers to provide a certificate to the parties in all matters where some or all of the issues in dispute have not been resolved. [Sensible]
Recommendation 24 Sections 10H and 10J of the Family Law Act 1975 (Cth), which provide for confidentiality and inadmissibility of discussions and material in Family Dispute Resolution in relation to parenting matters, should be extended to Family Dispute Resolution for property and financial matters. The legislation should provide an exception for a sworn statement in relation to income, assets, superannuation balances, and liabilities that each party signs at the start of Family Dispute Resolution, which should be admissible. [Sensible]
Recommendation 25 The Family Law Act 1975 (Cth) should be amended to clearly set out the disclosure obligations of parties, and the consequences for breach of those obligations. [HOORAY]
Arbitration
Recommendation 26 The Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth) should be amended to increase the scope of matters which may be arbitrated, whether or not upon referral from a court. Those matters should include all financial issues, including child maintenance and child support, subject to limitations. Appropriate occasions for arbitration would not include disputes:
relating to enforcement;
under ss 79A or 90SN of the Family Law Act 1975 (Cth) (subject to limitations); and
in which a litigation guardian has been appointed. [Sensible]
Recommendation 27 The Family Law Act 1975 (Cth) should be amended to remove the opportunity for a party to object to registration of an arbitral award, while maintaining appropriate safeguards for the integrity of registered awards. [Sensible]
Recommendation 28 The Family Law Act 1975 (Cth) should be amended to allow some children’s matters to be arbitrated. Appropriate occasions for arbitration in children’s matters would not include disputes:
relating to international relocation;
relating to medical procedures of a nature requiring court approval;
relating to contravention matters;
in which an Independent Children’s Lawyer has been appointed; and
involving family violence which satisfy ss 102NA(1)(b) and (c) of the Family Law Act 1975 (Cth).
[Most domestic violence cases will not meet this threshold.]
Recommendation 29 The Family Law Act 1975 (Cth) should be amended to provide that upon application by an arbitrator, or by a party to an arbitration, a court has power to make directions at any time regarding the further conduct of the arbitration, including power to make a direction terminating the arbitration (whether or not the arbitration was referred from a court). [Sensible]
Case Management: Efficiency and Accountability
Recommendation 30 The Family Law Act 1975 (Cth) should include an overarching purpose of family law practice and procedure to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families. [BRILLIANT!]
Recommendation 31 The Family Law Act 1975 (Cth) should impose a statutory duty on parties, their lawyers, and third-parties to cooperate amongst themselves, and with the courts, to assist in achieving the overarching purpose. Breach of the duty will have costs consequences for the person who fails to act in accordance with the overarching purpose. [Fair enough.]
Recommendation 32 The Family Law Act 1975 (Cth) should be amended to provide the courts with a power to make an order requiring a litigant to seek leave of the court prior to making further applications and serving them on the other party where the court is satisfied that such an order is appropriate for the protection of the respondent and/or any children involved in the proceedings, having regard to the overarching purpose of family law practice and procedure. [In other words, an ex parte Rice and Asplund application first. That should cut down some court cases. It will be interesting how that plays out.]
Recommendation 33 Section 45A of the Family Law Act 1975 (Cth) should be amended to provide that the courts’ powers of summary dismissal may be exercised where the court is satisfied that it is appropriate to do so, having regard to the overarching purpose of family law practice and procedure. [Sensible. It has been too hard at times to obtain summary dismissal of applications that are less than worthy, and are not prosecuted in a timely manner.]
Recommendation 34 The family courts should consider promulgating a joint Practice Note for Case Management which describes the courts’ approaches to the family law practice and procedure provisions. [Excellent. Already in train.]
Recommendation 35 The Family Law Act 1975 (Cth) should be amended to provide for the appointment and protection of referees in the same terms as provided for in ss 54A and 54B of the Federal Court of Australia Act 1976 (Cth). [Good]
Recommendation 36 Section 117 of the Family Law Act 1975 (Cth) should be amended to:
remove the general rule that each party to proceedings under the Act bears his or her own costs; and
articulate the scope of the courts’ power to award costs. [As long as this is not used to crush the other side, who might be very concerned about their children, and may have been subjected to domestic violence, or without funds.]
Recommendation 37 The Family Law Act 1975 (Cth) should be amended to provide courts with an express statutory power to exclude evidence of ‘protected confidences’. In determining whether to exclude evidence of protected confidences the court must:
be satisfied that it is likely that harm would or might be caused, directly or indirectly, to a protected confider, and the nature and extent of the harm outweighs the desirability of the evidence being given; and
ensure that in parenting proceedings, the best interests of the child is the paramount consideration when deciding whether to exclude evidence of protected confidences. [Expect that there will be a lot more objections to subpoenas.]
Compliance with Children’s Orders
Recommendation 38 The Family Law Act 1975 (Cth) should be amended to require parties to meet with a Family Consultant to assist their understanding of the final parenting orders made by a court following a contested hearing. [Excellent, provided there is resourcing and not a requirement in most cases that they sit in the same room at the same time.]
Recommendation 39 The Family Law Act 1975 (Cth) should be amended to provide that:
in all parenting proceedings for final orders, the courts must consider whether to make an order requiring the parties to see a Family Consultant for the purposes of receiving post-order case management; and
the appointed Family Consultant has the power to seek that the courts place the matter in a contravention list or to recommend that the court make additional orders directing a party to attend a post-separation parenting program. [Sensible]
Recommendation 40 The Family Law Regulations 1984 (Cth) should be amended to require leave to appeal interim parenting orders. Leave should only be granted where:
the decision is attended by sufficient doubt to warrant it being reconsidered; and
substantial injustice would result if leave were refused, supposing the decision to be wrong. [Fair enough.]
Recommendation 41 The Family Law Act 1975 (Cth) should be amended to explicitly state that when a new parenting order is sought, and there is already a final parenting order in force, the court must consider whether:there has been a change of circumstances that, in the opinion of the court, is significant; and it is in the best interests of the child for the order to be reconsidered. [Looking at Rice and Asplund straight up.]
Recommendation 42 Part VII Div 13A of the Family Law Act 1975 (Cth) should be redrafted to achieve simplification, and to provide for:
a power to order that a child spend additional time with a person;
a power to order parties to attend relevant programs at any stage of proceedings; and
a presumption that a costs order will be made against a person found to have contravened an order. [Good.]
Support Services in the Courts
Recommendation 43 The Family Law Act 1975 (Cth) should be amended to:
replace ‘family consultants’ with ‘court consultants’; and
redraft s 11A to include a comprehensive list of functions that court consultants would provide to children, families, and the courts.
Recommendation 44 Section 68LA(5) of the Family Law Act 1975 (Cth) should be amended to include a specific duty for Independent Children’s Lawyers to comply with the Guidelines for Independent Children’s Lawyers, as promulgated from time to time and as endorsed by the family courts. [Good]
Recommendation 45 The Australian Government should ensure the availability of Indigenous Liaison Officers in court registries where they are required. [Resources please.]
Recommendation 46 The Family Law Act 1975 (Cth) should be amended to include a supported decision making framework for people with disability consistent with recommendations from the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws. [Good]
Recommendation 47 The Family Law Act 1975 (Cth) should include provisions for the appointment of a litigation representative where a person with disability is unable to conduct the litigation. These provisions should be consistent with the recommendations of the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws. [As opposed to a more vague test under the Courts’ rules.]
Recommendation 48 The Australian Government should work with state and territory governments to facilitate the appointment of statutory authorities as litigation representatives in family law proceedings. [Fair enough.]
Building Accountability and Transparency
Recommendation 49 Section 115 of the Family Law Act 1975 (Cth) should be amended to expand the Family Law Council’s responsibilities to include:
monitoring and regular reporting on the performance of the family law system;
conducting inquiries into issues relevant to the performance of any aspect of the family law system, either of its own motion or at the request of government; and
making recommendations to improve the family law system, including research and law reform proposals. [If the Family Law Council is resourced and allowed to sit.]
Recommendation 50 The Family Law Council should establish a Children and Young People’s Advisory Board, which would provide advice and information about children’s experiences of the family law system to inform policy and practice. [Excellent.]
Recommendation 51 Relevant statutes should be amended to require that future appointments of all federal judicial officers exercising family law jurisdiction include consideration of the person’s knowledge, experience, skills, and aptitude relevant to hearing family law cases, including cases involving family violence. [BRILLIANT!]
Recommendation 52 The Law Council of Australia should work with state and territory regulatory bodies for legal practitioners to develop consistent requirements for legal practitioners undertaking family law work to complete annually at least one unit of continuing professional development relating to family violence. [Great for accredited specialists, but impossible to enforce for junior solicitors- who are the ones who probably need it the most.]
Recommendation 53 The Australian Government Attorney-General’s Department should develop a mandatory national accreditation scheme for private family report writers. [HOORAY!]
Recommendation 54 The Family Law Act 1975 (Cth) should be amended to:
require any organisation offering a Children’s Contact Service to be accredited; and
make it an offence to provide a Children’s Contact Service without accreditation. [EXCELLENT.]
Legislative Clarity
Recommendation 55 The Family Law Act 1975 (Cth) and its subordinate legislation should be comprehensively redrafted. [ I hope so- what a nightmare to read.]
Recommendation 56 Privacy provisions that restrict publication of family law proceedings to the public, currently contained in s 121 of the Family Law Act 1975 (Cth), should be redrafted. [HOORAY]
Secondary Interventions
Recommendation 57 The Family Advocacy and Support Service’s social support services should be expanded to provide case management to clients who are engaged with the family law system. [Great.]
Recommendation 58 The Australian Government should work with Legal Aid Commissions in each state and territory to expand the Family Advocacy and Support Service to court locations that have a demonstrable need and to ensure the provision of adequate and appropriate services. [Funding please.]
Recommendation 59 Family Relationship Centres should be expanded to provide case management to clients with complex needs who are engaged with the family law system. [Up skill in training- and funding please.]
Recommendation 60 The Australian Government should work with Family Relationship Centres to develop services, including:
financial counselling services;
mediation in property matters;
legal advice and Legally Assisted Dispute Resolution services; and
Children’s Contact Services.
[Great- try and get the mandarins in the Department of Finance to extend money for this. ]
