By Gianna Huesch
There were a raft of announcements relating to family law presented by the Turnbull Government as part of Budget 2017.
As well as various financial measures announced, the Government also unveiled a plan to have a comprehensive review of the Family Law Act 1975 undertaken by the Australian Law Reform Commission. The review will be due by the end of 2018, with interim reports to be issued, and is the first review since the Act was established four decades ago. This review will be in addition to the Parliamentary Inquiry into family law recently announced by the attorney-general George Brandis.
Changes to the Act already foreshadowed by Mr Brandis to happen “soon” include an amendment which will end the ability of alleged family violence perpetrators to personally cross-examine victims (and vice versa).
While this particular announcement has been met with widespread approval, Labor has pointed out that parties who will no longer be allowed to personally cross-examine will therefore be in need of legal representation to do so, and this would require additional funding for Legal Aid lawyers to be ordered by courts to assist them. However, there was no announcement on such funding in the Budget (source: http://www.smh.com.au/federal-politics/political-news/a-huge-victory-domestic-violence-perpetrators-banned-from-crossexamining-victims-20170510-gw1nsi.html).
The funding announced to be directed to the family law and legal assistance sector amounted to $80 million, which will comprise:
- $55.7 million spend over three years from 2017-18 for community legal assistance services (as promised in April).
- $3.4 million to be invested in expanding the Domestic Violence Unit pilot which was established as part of the Women’s Safety Package in 2015. Up to six new units will “deliver integrated specialist legal and social support to women experiencing, or at risk of, domestic and family violence”, according to the Government.
- $12.7m funding for a controversial new “Parenting Management Hearings” initiative conceived as an alternate dispute resolution process to assist self-represented litigants. These are planned to be out-of-court family hearings which will “gather evidence to make binding decisions”, according to the Government. Chaired by senior lawyers, and involving specialists (such as drug and alcohol and family violence experts), a pilot program has been announced to take place in Parramatta, however so far there is very little real detail regarding the hearings. The shadow attorney general, Mark Dreyfus said:
“What’s being set up here is a different decision making process under the Family Law Act. In order for that to occur there would need to be amendments to the Act conferring jurisdiction for this new dispute resolution mechanism.”
Aside from possible constitutional issues, there are also criticisms that the Government has outsourced policy-making and not enabled adequate consultation with stakeholders. The Opposition and the Australian Law Council have both questioned the influence of vocal anti-Safe Schools critic Professor Patrick Parkinson, on whose paper the parenting hearings are modelled.
There is also concern that parents will have inadequate legal representation at the “quasi-judicial” hearings, with the Opposition saying such matters “should be decided by judges”. However the Government has dismissed this concern, by saying the hearings are aimed at self-represented litigants who already lack legal representation.
Critics have also argued it would have made more sense for the funding for the proposed parenting hearings to flow to the underfunded family court system. (Source: https://www.theguardian.com/australia-news/2017/may/12/government-accused-of-outsourcing-family-law-policy-to-safe-school-critic)
- The funding which will be invested in the family courts will be $10.7m for the Federal Circuit Court and Family Courts to employ more family consultants. Family consultants are qualified social workers and psychologists specialising in childrens and family issues post-separation and divorce. Engaging more family consultants is hoped to speed up the courts’ access to independent assessments of child-related issues and benefit vulnerable families by offering “child-focused interventions”.
However, legal commentators and the Opposition point out that extra investment for court infrastructure and judicial personnel is still needed. Shadow attorney-general Mr Dreyfus said ”Mr Brandis should fill the five vacant positions on the family and federal court circuits, and must consider if more judges and registrars were needed to alleviate the backlog of cases.”
In the end, under-resourcing of the family courts and Legal Aid commissions remains a barrier to access to justice and a brake on delivery of justice for Australians.
Read the Government’s media release: https://www.ag.gov.au/Publications/Budgets/Budget2017-18/Pages/Media-releases/Transforming-the-family-law-system.aspx
Do you need assistance with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance to arrange a free first conference.