The Australian Law Reform Commission (ALRC) has released its report ‘Family Law for the Future – An Inquiry into the Family Law System’. This is the first time the family law system has been comprehensively reviewed since the commencement of the Family Law Act 1975. The inquiry commenced in 2017 with the objective of recommending reform needed to ensure Australia’s family law system meets the needs of contemporary families and adequately protects the rights of children.
The ALRC was asked to undertake a broad and far reaching review of the family law system, focusing on key areas of importance to Australian families. These included ensuring the family law system prioritised the best interests of children; best addressed family violence and child abuse, and supported families, including those with complex needs to resolve their family law disputes quickly and safely while minimising the financial burden.
The report makes 60 recommendations, these including:
• Establish state and territory family courts which exercise jurisdiction in relation to parenting and property matters under the Family Law Act, as well as child protection matters under state/territory legislation, and eventually abolish first instance federal family courts;
• Reformulate and simplify the factors to be considered when determining parenting arrangements that promote a child’s best interests, and repeal mandatory consideration of certain parenting arrangements;
• Strengthen the Family Law Act’s protection of Aboriginal and Torres Strait Islander children’s rights to maintain community and cultural ties;
• Simplify and create greater certainty around property division, including introducing a presumption of equality of contributions and provision that the date at which property interests crystallise is the date of separation;
• Impose an obligation on parties to take genuine steps to attempt to resolve their dispute prior to filing an application in Court;
• Impose a duty on parties, their lawyers, and third parties to cooperate with each other and the Court to facilitate the just resolution of their dispute with minimal time, expense and acrimony;
• Limit parties’ ability to appeal interim parenting orders or apply for new parenting orders;
• Strengthen the court’s powers to make cost orders, particularly where one party does not act in a manner conducive to the efficient resolution of the dispute;
• Introduce measures to promote ongoing reform, such as widening the Family Law Council’s responsibilities to include monitoring and regular reporting on the family law system’s performance, and establishing an Advisory Board to advise on children’s experiences of the family law system;
• Comprehensively redraft the Family Law Act to make it simpler and easier to understand;
• Further develop services including financial counselling, mediation, dispute resolution and children’s contact services.
If adopted, these reforms could have significant impact on the conduct of family law proceedings in Australia.