News

30 October 2018

The proposed overhaul of the Australian Family Law System – What is on the table?

When it comes to family law in Australia, much change is on the horizon.  On 2 October 2018, the Australian Law Reform Commission (“ALRC”) released its discussion paper (DP 86) which raises some significant changes being contemplated to the Australian family law system.  The discussion paper is a result of an extensive review by the ALRC which commenced on 1 October 2017.

124 proposals for change are made, and 33 questions are asked about the Australian family law system.  Some of the proposed changes remedy what many agree are obvious deficiencies in the current system.  Other proposals will no doubt draw extensive comment from the community and the professionals who work in this sphere.

For example, the rollout of a national education and awareness campaign regarding the family law system (Proposal 2-1) and the establishment of Families Hubs where people can access advice and support services (Proposal 4-3) should greatly assist the masses of people navigating the system each year.  This in turn will hopefully alleviate some of the current pressures on the Family Law Courts.

Substantial redrafting of the Family Law Act 1975 (Cth) and other legislation is proposed to simplify that legislation and increase readability (Proposal 3-1).  In an area of law with a significant number of self‑represented litigants, such a proposal may be seen as worthy of further consideration.

The current “best interests test” in parenting matters is proposed to be reframed as “safety and best interests” which is in line with the primary considerations set out in the current legislation (Proposal 3-3).  Changes are also proposed to the way in which Judges assess what orders or parenting arrangements are in a child’s best interests (Proposal 3-5).

The current requirement to attempt family dispute resolution prior to commencing court proceedings regarding children’s matters is proposed to extend to property and financial matters, with specific exceptions (Proposal 5-3).  This is consistent with current best practise guidelines and, in the writer’s experience, the reality of most property matters.

“Specialist court pathways” are proposed including a simplified small property claims process, a specialist family violence list and the Indigenous List (Proposal 6-3).  A “post-order parenting support service” is also contemplated (Proposal 6-9).

The creation of a “children’s advocate” (Proposal 7-8) and the requirement to give a child the subject of Court proceedings the opportunity to express their views (Proposal 7-3) are two proposals which could reasonably be expected to draw support from a large sector of the community, particularly those who have experienced such litigation firsthand.  A children’s advocate would be a social science professional with expertise working with children who would, amongst other things, assist the child in expressing their views (should they wish to do so), keep the child informed about the proceedings and explain any decisions made (Proposal 7-8).

Following the discussion paper, the ALRC will prepare a final report recommending reform of the Australian Family Law System by 31 March 2019.  Read the discussion paper here.  To make a submission email info@alrc.gov.au.

For more information about the family law reforms or any other family law issues, please contact a member of our family law team.

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