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A New Beginning or Change for Change’s Sake

A New Beginning or Change for Change’s Sake

The joint parliamentary inquiry into family law and child support was announced by Prime Minister Scott Morrison on 17 September 2019.

The Prime Minister announced that the inquiry would be a “wide-ranging” inquiry into the Australian family law system.

In his media release, the Prime Minister stated that the purpose of this joint parliamentary inquiry was to determine whether the Australian family law system is “fit for purpose”.

The announcement of this inquiry was not something that had been contemplated by the profession. This was mainly because the Australian Law Reform Commission (ALRC) handed down its wide-ranging review of the family law system in April 2019. The ALRC’s review came about as a result of the former Attorney-General, the Honourable George Brandis, giving the ALRC “wide-ranging” terms of reference to enable the government to consider making amendments to the Family Law Act or reforming the area of family law in general.

At the time the Prime Minister announced the joint parliamentary inquiry, the government was yet to respond in full to the ALRC’s review and the 60 recommendations that the ALRC made in relation to both the Family Law Act and the family law system in general.
The joint parliamentary inquiry has, as stated above, wide-ranging terms of reference. The stated aims of the inquiry include:

  1. ensuring that families can resolve their issues quickly and fairly;
  2. allowing families to tell their stories to members of parliament about how the family law system has impacted upon them;
  3. allowing the parliament to consider any recommendations about how the system can be improved.

The Attorney-General, the Honourable Christian Porter MP, has already proposed significant reforms, including the merger of the Family Court and Federal Circuit Court. This merger is opposed by not only the courts but also the legal profession as the stated aim of making the court more streamlined by amalgamating the court will not assist given the lack of funding that previous and current governments have allocated to it.

The inquiry is also to consider under its terms of reference:

  1. the improvement of the family law system and the way it interacts with child support assessment and collection;
  2. how the family law system, state and territory child protection systems, and state and territory domestic and family violence systems operate together and how their interaction with the family law system can be improved;
  3. how the operation of, and enforcement of, court orders can be improved;
  4. the costs of legal proceedings and how this can be improved where there is concern that legal fees are disproportionate to the property pool;
  5. how non-parent carers, such as grandparents, can be better accommodated in the family law system.

The Chair of the Family Law Section of the Law Council of Australia, Paul Doolan, has described the joint parliamentary inquiry as an event of national importance. Mr Doolan has put forward the Family Law Section’s view that as the peak professional body for family law practitioners in Australia, it has consistently called for a complete review of the Family Law Act and for proper resourcing of the family law sector. This sector does not only include the courts, but also includes the non-government providers of services such as contact centres, community-based counselling and support services, community legal centres, and state legal aid commissions.

The Family Law Section will, on behalf of practitioners, seek to be engaging with the joint parliamentary inquiry and putting forward the views and experience of the family law profession, our clients who have used or are currently in the family law system, and the best interests of children, given that a considerable number of disputes involve independent representation of children by specialist practitioners.

There is no doubt, from our point of view, that the Family Law Act does require a review and various amendments. The nature of the legislation alone and the 300 sections that now comprise over 500 pages is difficult enough for the most experienced practitioner to navigate. Members of the public who are forced to represent themselves (usually due to their ineligibility to obtain legal aid funding) are likely to have considerable trouble navigating, let alone understanding, the Act.

The under-resourcing of the courts and the number of people forced to represent themselves is an issue that must also be addressed. This may, in some small way, address the apparent concerns of the government relating to the costs of proceedings.

Change needs to happen, but it must happen in a structured and focused way so that it is useful to the users of the family law system. It should not be change for change’s sake.