The Parliamentary family law inquiry has just released its second interim report into the family law system. So at this stage, what does the Committee find are the biggest problems besieging the family law system, and what are the solutions? The report, containing 29 recommendations, identifies four consistent themes through the inquiry:
Four areas of main concern have been consistently raised during the family law inquiry so far:
- Extensive delays
- Excessive costs
- Difficulties around enforcing orders, and
- Timely resolution of family violence allegations
So what’s the gist of the new recommendations?
Largely, it comes down to adequately resourcing a system that has radically grown and become more complex over the past few decades. The 29 recommendations suggest various pathways forward, with a strong focus on alternative dispute resolution and support services. Here’s a quick rundown of the ground covered by the recommendations.
- Have more staff who are extensively trained
It’s kind of a no-brainer that you’d need to hire extra staff to handle the quantifiable extra numbers of family court proceedings that take place nowadays. And sure enough in this second interim report, the family law inquiry’s Committee suggests that the family court system needs extra staff (+25-30 registrars, and support staff).
Because of increasing complexity, all family law professionals need more education and training, too.
- Review standards and accreditation
Not only does there need to be more training, but we need to confront issues around standards and accreditation of experts and family consultants (whether court engaged or privately engaged) and children’s contact services.
- Pilot solutions
The report recommends it’s a good idea to continue and expand various creative pilot programs that have been trying to find solutions for helping families avoid the court system altogether. For example, the pilots for quicker and cheaper resolution of small property claims (the Priority Property Pool), and pilots for better triaging family violence (The Lighthouse Project).
There’s also the recommendation to pilot a new, improved inquisitorial tribunal model (formerly known as ‘parenting management hearings’).
- Aim for streamlined case management
There’s suggestions to empower Registrars further, so they can take a bit of the workload off the judges. They could help with case management, especially around issues of financial disclosure and compliance. The idea is also to allow them to make orders in property settlements worth under $2m. They could also help with providing dispute resolution in parenting matters and conciliation in property matters, say the Committee.
- Simplify and make things cheaper for families
A single entry point is seen as a better way to triage matters (though there’s no support for the court merger plan). To assist with more streamlined case management, there should be a harmonisation of rules, forms and processes across the Family Court and the Federal Circuit Court too.
Along with the need to infuse the necessary cash into the system to get it functioning properly, there is also the urgent need to reduce crippling costs for families. Among the recommendations is the suggestion to cap legal fees to $50,000 or 10% of the asset pool. It’s also recommended that Legal Aid is better resourced so it can relax its means test and help more families.
- Address systemic family violence issues
The inquiry recommends reviewing the family violence order framework, the support services for family violence cases, amending the Family Law Act so it reflects the effect of family violence on property settlements; better resourcing/funding of FASS, the Family Advocacy and Support Service; better information sharing across family law, child protection, family violence systems, the Tax Office. The family law inquiry also recommends that relevant state agencies and authorities, such as child protection practitioners and policing officials, interact with their federal counterparts.
Another idea is to expand family dispute resolution services so it can still be used in cases involving family violence, ensuring specialist, trained practitioners carry out these services.
- Make necessary amendments to the Family Law Act
All the little adjustments like abolishing barrister ‘disappointment’ or cancellation fees, or legislating around unbundled legal services (presumably to increase consumer access to this often lesser-known method of using legal services).
Importantly, reform should address the problems around how parents routinely misunderstand the equal shared care provisions of the Family Law Act. There needs to be better, more standardised definitions around family violence issues, and there needs to be a greater understanding of how to investigate and prosecute making false allegations.
- Compliance reform
Some of the ideas around compliance system reform include creating and funding a National Contravention List (and it’s recommended another seven registrars are hired here). The family law inquiry report also recommends looking at appropriate penalties for non-compliance with orders. There’s discussion about financial disclosure duties and penalties for breaching them, and relevant necessary amendments to the Family Law Act.
- Keep them out of court
Generally, the point is to help prevent families from ending up in painful, costly, protracted courtroom battles. And to keep them out of the court system, with recommendations that it be figured out how to document post-family dispute resolution property agreements to reduce future litigation. The use of Binding Financial Agreements can also be enhanced, the Committee says.
- Tackle the big issues
The report recommends continuing to work towards the big picture of a less adversarial system, and to figure out how to better hear children’s voices, given their centrality to much of family law. There’s also a recommendation that the Productivity Commission investigates the costs of family breakdowns and the adequacy of current preventative measures.
The inquiry canvassed submissions from hundreds of stakeholders and the new report has been endorsed by all Committee members – Coalition, Labor, Greens and the crossbench.
We will be taking a deeper dive into particular aspects of the family law inquiry recommendations over the coming weeks.
If you need 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.
