In 2018, it was announced there would be significant changes to the family law system in Australia. In the short term, these changes are designed to address lengthy delays in the relevant courts. Further changes have also been suggested in response to increases in family violence, mental health and substance abuse, bringing the Family Law Act 1975 (Cth) up to date with contemporary demands.
Calls for further changes in the area of family law
In response to significant delays in the Family Court, with some cases waiting to be heard for 18 months or more, Commonwealth Attorney-General Christian Porter declared that the Family Court of Australia and the Federal Circuit Court would be integrated into one single court, the Federal Circuit and Family Court of Australia.
One of the repercussions of the lengthy delays includes these courts ‘job sharing’ cases, with up to 22,000 matters being filed across both courts each year. In an interview on ABC Radio’s ‘AM’ program, Porter described the “terrible” impact of these bottlenecks on individuals, with cases being bounced around between the parallel courts, each functioning on different rules, forms and procedures.
In response, and for the first time since the enactment of the Family Law Act in 1975 (Cth), the [then] Turnbull Government instructed the Australian Law Reform Commission (ALRC) to complete a reevaluation of the Act. The Commission’s report, due in March 2019, will consider what changes to the system are necessary, particularly to address issues of family violence and child abuse, as well as meeting the general and modern needs of the Australian community. The release of the report may also potentially affect the current legislation within the Family Law Act 1975 (Cth), and therefore affect how family law matters are dealt with in the system.
Outgoing Chief Justice of the Family Court John Pascoe has also called for a Royal Commission, should the ALRC report not fully address the issues that are currently facing the courts. Pascoe cited a rise in violence against children, mental health issues and substance abuse cases as some of the reasons for his comments. Pascoe added that “tinkering” to the system over the years has only added to its complexity, unpredictability and cost.
A brief overview of previous changes to the system: how did it get to this point?
In 2006, major amendments were made to the Family Law Act 1975 (Cth), however many complained that the issue of family violence was still not being properly addressed. These complaints resulted in the reinforcement of legislative provisions, requiring the judicial officer to decide with which parents (or other parties) a child is to live and spend time which balanced the need to protect both adults and children from violence while allowing parents to continue a relationship with both the child and the other parent. However, the legislation was highly criticised for lacking provisions that specified the priority of protection from harm over shared parenting.
In response, the Family Violence: Best Practice Principles and the Best Practice Guidelines: for lawyers doing family law work, were released to help guide decision-makers on family violence and abuse.
Subsequently, the Federal government commissioned an extensive evaluation of the legislative changes from the Australian Institute of Family Studies. The findings reported a disturbing amount of cases involving family violence, and the Commonwealth government commissioned four further enquiries examining family violence, including:
- The Family Law Council, reporting on improved responses to family violence in the system;
- Professor Richard Chisholm, on family courts and family violence;
- the Australian Law Reform Commission in association with the New South Wales Law Reform Commission, to analyse and suggest improvements for legal frameworks;
- Monash University, with the University of South Australian and James Cook University, to appraise the impact caused by family violence on decision-making, as well as the use of Family Dispute Resolution services.
As a result of these reports, the Family Law Amendment (Family Violence and other Measures Act) 2011 (Cth) was enacted. Three significant areas of change were introduced, including new definitions of family violence, exposure to family violence and child abuse. The second significant change was the “primary” and “additional” considerations that needed to be taken into account when determining the best interests of the child. The third provision was the “friendly parent” provision introduced under “additional considerations”, which involved “the willingness and ability of each of a child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent”. This section elicited criticism for potentially discouraging parents from disclosing violence by the other parent for fear of being regarded as an “unfriendly parent” and thus potentially placing children in an unsafe environment. This provision was eventually withdrawn from the legislation. Instead, the court now takes into account whether or not a parent has fulfilled their responsibilities.
Further amendments to additional considerations meant that when assessing a child’s best interests and making a parenting order, the court is directed to give weight to the existence of any state or territory family violence order applying to a child. This dilutes the evidentiary value of the order, however, because some family violence orders are often made by consent without any admission of guilt by either party.
Issues not covered by the legislation
The reports did raise two large areas of concern that we’re not a direct subject of the amendment. With the enactment of the Family Law (Shared Parental Responsibility) Act 2006 (Cth), the controversial provision that both parties are to attend Family Dispute Resolution services (unless excepted due to family violence or child abuse) soon became a concern. In particular, the fear that women will be pressured into unjust or unfair agreements because they are often considered economically, socially and psychologically more vulnerable than men after a separation.
The second area of concern is that the legislation essentially created an unrealistic expectation regarding shared parenting arrangements. The provision was misconstrued by many parents to believe that children must spend equal time or significant time with each parent when in fact, it is only something the court has an obligation to consider.
These ongoing issues in the area of family law demonstrate its evolution since the enactment of the Family Law Act in 1975 (Cth). While the Act was groundbreaking at the time, it’s clear the Act requires further amendment so that it reflects changes occurring elsewhere and the modern demands on the system.
If you need advice on a family law matter, or simply have any questions regarding the changes described above, you should seek legal advice from a family law specialist today.