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The ALRC – Review of the Family Law System – Discussion Paper

The ALRC released on 2 October 2018 it’s Discussion Paper making 124 far-reaching and significant proposals for change to the family law system. I look at 6 proposals that will be of interest to family law practitioners. Submissions are due by 13 November 2018 with the ALRC to report to the Attorney-General by 31 March 2018.

At over 313 pages, excluding indexes and summaries, the Discussion Paperwas always expected to be thorough and extensive, particularly given the extensive written submissions across many stakeholders within the family law system and public hearings across Australia.  In all the Discussion Paper makes 124 proposals. Below are a selection of 6 that I think will impact directly upon day-today family law practice.

  1. Simplifying the FLA – Parenting 

Proposal 3–3 The principle (currently set out in s 60CA of the Family Law Act 1975 (Cth)) that the child’s best interests must be the paramount consideration in making decisions about children should be retained but amended to refer to ‘safety and best interests’. 

Proposal 3–5 The guidance in the Family Law Act 1975 (Cth) for determining the arrangements that best promote the child’s safety and best interests (currently set out mainly in s 60CC), should be simplified to provide that the following matters must be considered: 

  • any relevant views expressed by the child;
  • whether particular arrangements are safe for the child and the child’s carers, including safety from family violence or abuse; 
  • the developmental, psychological and emotional needs of the child; 
  • the capacity of each proposed carer of the child to provide for the developmental, psychological and emotional needs of the child; 
  • the benefit to a child of being able to maintain relationships that are significant to them, including relationships with their parents, where it is safe to do so; and 
  • anything else that is relevant to the particular circumstances of the child. 

Practitioners, including judicial officers, have often criticised the “labyrinthine pathway” laid out by the FLA. The ALRC has clearly recommended the decision-making framework – and hence how we advise clients – be replaced with simpler framework. [1]

On the downside, this will require re-learning where everything is in the FLA. For some of you who have been around as long as me, this will be the fourth significant change to parenting matters. 

  1. Simplifying the FLA – Property 

Proposal 3–10 The provisions for property division in the Family Law Act 1975 (Cth) should be amended to more clearly articulate the process used by the courts for determining the division of property. 

As for parenting decisions, significant submissions complained of the difficulty in understand how a court determines a just and equitable outcome. Unlike parenting matters however, most of the guidance is contained in several decades of jurisprudence rather than there being a legislative code. The ALRC recommends the FLA more clearly sets out the analytical steps in determining a property settlement.[2]

It is difficult to argue against such a recommendation. Such an amendment may even result in less disputes meaning less work for family law practitioners !

  1. FDR In Property Matters

Proposal 5–3 The Family Law Act 1975 (Cth) should be amended to require parties to attempt family dispute resolution prior to lodging a court application for property and financial matters. There should be a limited range of exceptions to this requirement, including: 

  • urgency, including where orders in relation to the ownership or disposal of assets are required or a party needs access to financial resources for day to day needs; 
  • the complexity of the asset pool, including circumstances involving third party interests (apart from superannuation trustees); 
  • where there is an imbalance of power, including as a result of family violence; 
  • where there are reasonable grounds to believe non-disclosure may be occurring; 
  • where one party has attempted to delay or frustrate the resolution of the matter; and 
  • where there are allegations of fraud. 

Proposal 5–4 The Family Law Act 1975 (Cth) should be amended to specify that a court must not hear an application for orders in relation to property and financial matters unless the parties have lodged a genuine steps statement at the time of filing the application. The relevant provision should indicate that if a court finds that a party has not made a genuine effort to resolve a matter in good faith, they may take this into account in determining how the costs of litigation should be apportioned. 

This proposal flows from a submission from the BAQ and LCA requiring explicit reference to pre-action procedures in the FLA a Mediator’s Certificate about genuine efforts to resolve a dispute.

Time and time again I see mediations fail simply through lack of genuine effort to either prepare the dispute for mediation or lack of effort exploring a negotiated outcome. I have also seen many property applications in particular that have been filed in court for no other reason than to force the other party to a mediation. 

  1. A Triage for the ER

Proposal 6–1 The family courts should establish a triage process to ensure that matters are directed to appropriate alternative dispute resolution processes and specialist pathways within the court as needed. 

Proposal 6–2 The triage process should involve a team-based approach combining the expertise of the court’s registrars and family consultants to ensure initial and ongoing risk and needs assessment and case management of the matter, continuing, if required, until final decision. 

In many ways this appears to proposed a procedure that is currently being piloted in Brisbane with the Brisbane Case Management Initiative. If such a proposal is legislated greater focus will be required in the drafting of initial material to assist the court employ the right triage services at the outset. 

  1. The Child’s Voice

Proposal 7–3 The Family Law Act 1975 (Cth) should provide that, in proceedings concerning a child, an affected child must be given an opportunity (so far as practicable) to express their views. 

Proposal7–8 Children involved in family law proceedings should be supported by a ‘children’s advocate’: a social science professional with training and expertise in child development and working with children. The role of the children’s advocate should be to: 

  • explain to the child their options for making their views heard; 
  • support the child to understand their options and express their views; 
  • ensure that the child’s views are communicated to the decision maker; and 
  • keep the child informed of the progress of a matter, and to explain any outcomes and decisions made in a developmentally appropriate way. 

Proposal 7–9 Where a child is not able to be supported to express a view, the children’s advocate should: 

  • support the child’s participation to the greatest extent possible; and 
  • advocate for the child’s interests based on an assessment of what would best promote the child’s safety and developmental needs. 

Proposal 7–10 The Family Law Act 1975 (Cth) should make provision for the appointment of a legal representative for children involved in family law proceedings (a ‘separate legal representative’) in appropriate circumstances, whose role is to: 

  • gather evidence that is relevant to an assessment of a child’s safety and best interests; and 
  • assist in managing litigation, including acting as an ‘honest broker’ in litigation. 

This recommendation appears to reach further than merely parenting matters and suggests that in any proceeding “affecting the child” the child should have the right to be heard. [3]

Assuming there is a funding model for these proposals, the impact upon day-to-day practice would be significant particularly as the child’s advocate is in addition to the Independent Children’s Lawyer. [4]

  1. FDR practitioners and property

Proposal 10–5 In developing the workforce capability plan, the capacity for family dispute resolution practitioners to conduct family dispute resolution in property and financial matters should be considered. This should include consideration of existing training and accreditation requirements. 

Such a proposal obviously works hand in glove with the above proposals. Whatever the core competencies then required of an FDRP will be in the future is a little unclear. [5]

As stated, this is merely a snapshot of some 124 proposals. Together with the proposed amalgamation of the two courts anticipated in the Federal Circuit and Family Court of Australia Bill 2018and ongoing Practice Direction changes, staying on top of family law practice is a challenge. Bookmark this page and I will try to keep you as up-to-date as possible. 

[1]See 3.49

[2]See 3.108

[3]See 7.33

[4]See 7.76

[5]See 10.33

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