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Transforming the Family Law System

By 12 May 2017Family Law, General

Neal Wood, Associate

The most recent media release from the Australian Attorney General following Tuesday’ budget refers to a number of measures that are said to be of great assistance to Family Law in Australia.

The reversal of announced cuts to some community legal services are very welcome and will assist the valuable work of those organisations that help the most vulnerable self-represented parties.

There is also increased funding for more Family Consultants which I sincerely hope will go some way towards reducing the time between when an order is made for a Court funded family report to be prepared and the parties and the Court receiving that important piece of evidence.

The Attorney General has also announced that the Law Reform Commission will be tasked with carrying out a review of the Family Law system as a whole to ensure that it continues to meet the changing landscape of Australian families. The precise work that the Commission will be asked to do (called their terms of reference) are yet to be released but it is suggested the Commission will be asked to report back by the end of 2018.

A longer term goal of helping to find efficiencies in the family law system which reduce the number and length of matters going to Court can only be a good thing. My personal opinion and one which is shared by some other family lawyers is that the parts of the Family Law Act dealing with parenting disputes have become increasingly complex over the years and could benefit from being refined. The Parenting parts of the Act have gradually grown to include objectives, principles underlying the objectives, primary considerations with different weight, additional considerations and a rebuttable presumption. At one time or another the addition of those matters have been promoted as helping to guide parents and the Court about the process to be followed when making decisions that are in the best interests of children.

As lawyers we are used to navigating that pathway and crafting our client’s case to subtly direct and persuade a judge or another lawyer to a conclusion that meets the children’s best interests. However, I often wonder, and regularly see in Court, how parents struggle to understand how the current law applies to their children let alone being able to explain that to a very busy judge. The end result is that matters that do end up in Court tend to take longer as the reasons that must be given to support a particular decision are more detailed and may take many weeks to deliver. Whether the Parenting Management Hearings that have been foreshadowed in the most recent announcement to address those types of disputes will be effective will be interesting to see.

While reviews, family consultants and community legal services are helpful I doubt that those measures in isolation will deliver any real gains to the daily experience of client’s that find themselves in the Family Court system at present.

Despite what some may suggest, in my experience if parties are in Court they are there for a genuine reason and need a judge to make a decision in their matter sooner rather than later. I have no intention of repeating the words of other lawyers, judges and commentators who have passionately expressed that the Family Court system is now in crisis due to a lack of funding.

As lawyers we have an important role in assisting to reduce the current Court delays where we can, by helping parties resolve matters without the Court’s assistance or at least limiting the issues where they do.

For some time now I have seen the effect that the current Court delays are having on real people that genuinely need a Court determination and I can assure you that they are not good for anyone involved. Without a significant injection of funding for more judges to hear those matters and the Court resources to support them I fear that the delays will only increase and that outcomes will continue to be impacted accordingly.