The Government has just delivered its response to the 60 recommendations contained in the Australian Law Reform Commission’s (ALRC) review of the family law system and the Family Law Act, which had been undertaken in 2017 with a final report delivered in 2019. This comes hot on the heels of the fresh release of 29 recommendations that stemmed from the Government-commissioned parliamentary family law inquiry. No doubt there is overlap between the two sets of recommendations, so a look at what the Government’s response is to the ALRC review recommendations is probably indicative of how it will likely eventually respond to the new family law inquiry recommendations. Let’s take a brief look at a couple of the issues.
The need to clear up the confusion around “equal shared parental responsibility”
Since the introduction of “equal shared parental responsibility” into the Family Law Act 1975 by the Howard Government back in 2006, there has been persistent confusion about the law. Many in the community have misinterpreted the provision to equate it to enshrining equal shared time ie. 50:50 time with the kids.
The Government points out that under the Family Law Act, the courts must start with a presumption of equal shared parental responsibility and if this is in the best interests of the child, then the courts next consider whether equal time or significant and substantial time or less time or no time is appropriate, given the particular circumstances of a matter. The Government points out that the Family Law Act only requires the court to consider this, not to begin with a presumption of it. In other words there is no automatic starting point of 50:50 shared time.
The ALRC suggested changing the wording to “joint decision making about major long term issues” so that people are crystal clear that this provision does not relate to the division of time with the children. But the Government expresses doubt that this would actually prevent people’s misinterpretation. However, to us it seems the word “equal” is definitely the bugbear in people’s continued misinterpretation of an “equality of time” with the children. The word “joint” is different, implying undertaking something together, but not necessarily implying that something is exactly “equal”. It is clearly difficult for people to get the idea of equality of time out of their head when they read the words “equal shared”. And “decision making” is clearer than “parental responsibility”, which to the layperson can sound like looking after the children and therefore easily sound like time spent with the children.
The Government points out that the provision is explained in the Family Law Act, and if the Family Law Act is in fact read by users, it would be understood that it does not mean automatic “equal time”. Changing the language, the Government argues, “may simply add to current confusion”. The solution from the Government’s perspective is to instead try to reduce confusion by “giving greater prominence to the [explanatory] note accompanying” the section of the Family Law Act, so that people are more likely to read it and therefore understand that equal shared parental responsibility does not mean equal time. Here, the Government would also make it clearer to users about when the presumption of equal shared parental responsibility does not apply, such as in cases involving family violence.
Clarify financial disclosure obligations and consequences
In order to have a fair resolution of property disputes, it’s necessary for parties to be transparent about their financial situation. But at the moment, financial disclosure duties are contained in two sets of rules, the Family Law Rules and the Federal Circuit Court Rules. The Government agrees that these duties need to be harmonised and brought into the Family Law Act instead. Also, the Family Law Act should spell out the consequences of breaching the duty of disclosure. Another aspect here is that the Government wants to enable information sharing between the ATO and the family courts in order to strengthen the obligations under the Family Law Act, making it harder for people to hide assets.
Expand arbitration so it can be used in parenting matters
The Government response indicates it agrees in principle to expanding the use of the alternative dispute resolution process arbitration so that it can be used for certain parenting matters. Currently, arbitration is only able to be used for non-parenting matters.
The ALRC had suggested that arbitration of children’s matters could work, if the process was protected by legislation such that the family court would still retain a fair amount of control. For example, the family court would have to refer matters to arbitration, with the consent of parties, and an arbitral award wouldn’t take effect through registration (like with financial matters) but would only become an order of the court if the family court reviewed the matter and was satisfied the order should be made.
The Government agrees such protections are needed, but is asking for more analysis to ensure the process would result in decisions made in the best interests of children. For example, there needs to be careful examination of issues surrounding handling evidence, family reports, children’s views, the costs involved and the accountability of arbitration practitioners.
Require genuine efforts to resolve property/financial matters outside court
With parenting matters, parties have to first attempt mediation before they are able to make an application to the court. It looks likely that the Government will adopt the ALRC’s recommendation that a similar requirement be implemented for property and financial matters. Parties should be compelled to take “genuine steps” to try to resolve their matter outside of court and lodge a “genuine steps statement” before being able to go to court. There could be incentives to do so, and disincentives (costs consequences) if they do not. The aim is to steer more parties towards alternative dispute resolution processes to reduce congestion in the court system. This area needs a lot of work to figure out how to design an appropriate system including defining what is meant by “genuine steps” and exemptions (eg. for matters involving family violence).
Address family report writer accreditation
Private family report writers have come under fire over the years, mainly due to their lack of oversight and accountability. As such, it’s good to see the Government agree in principle to the ALRC recommendation that there be a mandatory national accreditation scheme for private family report writers to ensure they are “appropriately qualified, trained and accountable”. This will go a long way towards rebuilding community trust in these experts, given the impact they have on family court outcomes.
Overall, it looks like there will be plenty of amendments to the Family Law Act as we move into the next phase of family law reform in Australia. Much of the response to the ALRC report seems to hinge on simplifying the Act so that it can be better understood and utilised by families, many of whom are self-represented. Hopefully the end result will be a more efficient family law system that is easier for families to navigate, and with less confusion or politicisation of its provisions—for example, the fallacy that changing the wording of the equal shared parental responsibility provisions means it will become “anti-Dads”.
The above is only a short look at some of the matters raised by the ALRC report and the Government response. You can read the ALRC’s Final Report from 2019 in full here and the complete Government’s response here.
If you would like assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other 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 Family Law.