Justice SC Derrington, President of the ALRC, presented at the Family and Relationship Services Australia (FRSA) National Conference 2019 on 21 November 2019.
Let’s start at the very beginning. The statute that contains the rules particular to the regulation of families in this country is ‘An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and to financial matters arising out of the breakdown of de facto relationships and to certain other Matters’ – the short title is the Family Law Act 1975.
The long title, however, tells us some very important things about the particular matters the Act seeks to regulate — marriage, divorce and matrimonial causes; parental responsibility for children whether within a marriage or otherwise, and financial matters arising out of the breakdown of de facto relationships.
As part of the Family Law Inquiry, the ALRC established the Tell Us Your Story project — an online submission portal where individuals were encouraged to anonymously share personal stories of their experiences with the family law system. The attached summary provides aggregated data regarding the number and nature of individual stories that included complaints against actors in the family law system and about the system in general. This note is intended to supplement the ALRC’s final report, which provides, at Chapter 3, a high level summary of the data collected from the Tell Us Your Story project.
The first recommendation in the ALRC’s latest inquiry report: Family Law for the Future is that family law disputes be returned to the states and territories and the federal family courts eventually abolished. This recommendation responds to arguably the most pressing concern facing the family law system: that children are falling into harm because of gaps between the federal family court and state and territory courts, child protection services and police. A short summary of the recommendation is available here.
The ALRC has released a summary of its recommendations on parenting. The summary is available here
The Australian Law Reform Commission (ALRC) today released a Discussion Paper, Review of the Family Law System (DP 86), and is calling for comments and feedback on its proposals for reform.
The Terms of Reference for this Inquiry ask the ALRC to consider reform in relation to range of issues including the early and cost effective resolution of all family law disputes; the protection of the best interests of children and their safety; the best ways to inform decision makers about the best interests of children and their views; family violence and child abuse, including protection for vulnerable witnesses; and laws in relation to parenting and property division after separation.
In DP86, the ALRC makes proposals to enhance appropriate participation by children in the family law system, including providing a right for children to express their views on parenting arrangements after separation and providing for Children’s Advocates to assist children express those views and navigate the system.
A further proposal is the creation of a new body, the Family Law Commission, to oversee the operation of the family law system and to accredit professionals who work in it. The Family Law Commission would also receive and investigate complaints against family law system professionals.
These proposals are among 124 suggestions for change to the family law system put forward in DP86. Other proposed changes include:
- the creation of Families Hubs so that separating families would have access to a whole range of services in one place, including legal assistance, dispute resolution and counselling and advice;
- an information and education campaign for separating families about the law and where to get help;
- locating family court registries in state and territory local courts;
- making the law about separation simpler and easier to understand; and
- a new service to help parents manage their court ordered parenting arrangements to reduce the need for families to go back to court for further orders.
The family law system would work more closely with state and territory systems and agencies under the reform plan.
The ALRC released an Issues Paper in March 2018, to which it received over 480 submissions. Over 800 individual stories were also received via an online portal, and the ALRC conducted more than 100 consultations with organisations and participants in the family law system. These contributions informed the development of proposals for change to family law systems and processes in DP86.
The ALRC invites submissions in response to the proposals and analysis in DP86Submissions are due to the ALRC by 13 November 2018.
The ALRC is required to present its report on family law reform to the Attorney-General by 31 March 2019.
On 27 July 2018, Professor Rhoades presented at the annual Australian Institute of Family Studies Conference.
On 29 June 2018, The Hon Christian Porter MP, Attorney-General for Australia, announced the appointment of Dr Andrew Bickerdike as a Part-time Commissioner to the ALRC Review of the Family Law System.
See Attorney-General’s media release>>
The Australian Law Reform Commission (ALRC) has released an Issues Paper for its Review of the Family Law System, and is calling for submissions from the public.
The family law system is undergoing its first, independent comprehensive review since the inception of the Family Law Act 1975 more than forty years ago.
Much has changed in Australian social and family life since then. For example, there are more people living together outside marriage, there are more changes in relationships and stepfamilies, reproductive technologies mean families can be formed in diverse ways, same-sex marriage is now legalised, and there is greater awareness of the prevalence of family violence and child abuse and the damage they can cause.
The wide ranging Terms of Reference ask the ALRC to consider the need for reform in relation to areas that include:
- appropriate early and cost-effective resolution of all family law disputes;
- the protection of the best interests of children and their safety;
- the best ways to inform decision makers about the best interests of children and their views;
- family violence and child abuse, including protection for vulnerable witnesses;
- laws in relation to parenting and property division after separation.
The Issues Paper released today provides discussion of issues identified in the Terms of Reference, and asks questions about how they could be addressed.
The ALRC invites submissions in response to the 47 questions and analysis in the Issues Paper, which is available on the ALRC website at www.alrc.gov.au/publications.
People who have had recent experiences with the system have an opportunity to share these with the ALRC anonymously through a Tell Us Your Story portal on the ALRC website – www.alrc.gov.au/content/tell-us-your-story.
The Review of the Family Law System was referred to the ALRC by the Hon George Brandis QC, former Attorney-General, in September 2017. The Hon John Faulks and Mr Geoffrey Sinclair have been appointed Part-Time Commissioners to assist Lead ALRC Commissioner, Professor Helen Rhoades and the ALRC team.
Submissions are due to the ALRC by 7 May 2018.
To keep in touch with the Inquiry, please subscribe to the Inquiry e-news at www.alrc.gov.au/inquiries/family-law-system/subscribe-e-news
Tell us your story about the family law system
As soon as the Review of the Family Law System was announced, the ALRC started receiving calls and emails from people keen to share their experiences of the family law system with us, in the hope their stories will illuminate some of the problems in the current system. The ALRC is not accepting submissions until the release of the Issues Paper in March 2018, however we are keen to hear these stories. To that end we have set up a page on the ALRC website that allows people to do this – simply and confidentially.
Unlike formal submissions, these stories are for the ALRC’s use only and will not be published. (However, all material received by the ALRC may be subject to Freedom of Information requests.) The ALRC does not handle complaints, nor can we offer legal advice or intervene in individual cases. The purpose of receiving these stories, or case studies, is to help us understand the different ways in which the family law system may be failing individuals and families or where there have been positive experiences that we should build on. We are particularly interested to hear about experiences within the past 5 years.
As indicated in our last enews, over the past few weeks we have been putting together an Advisory Committee, as per usual ALRC practice, to provide quality assurance in the research and consultation processes. We offer our sincere gratitude to all Advisory Committee members for their commitment to assisting the ALRC in this Inquiry.
27 September 2017
Terms of Reference received
Issues Paper + call for submissions
Submissions to Issues Paper close
Discussion Paper + call for submissions
Early October 2017
Submissions to Discussion Paper close
31 March 2019
Welcome to the Review – from the Leading Commissioner
Welcome to the first e-news for the Review of the Family Law System.
It is a great privilege to have been asked to lead this Review, the first comprehensive review of Australia’s modern family law system since its commencement in January 1976. Although the system as a whole has not previously been the subject of assessment, I am mindful that many of the issues raised by the Terms of Reference have been considered in a range of earlier reports. Along with an extensive academic literature in this area, and the valuable empirical research conducted by the Australian Institute of Family Studies, these reports will be used to guide the ALRC as it commences its work.
The creation of the family law system and passage of the Family Law Act it was designed to administer were, in large part, a response to the then growing policy recognition that the existing divorce regime was out of step with the changing social mores of Australian society. The Matrimonial Causes Act 1959 (Cth), which preceded the Family Law Act, centred around 14 predominantly fault-based grounds for obtaining a divorce, including the most frequently used ‘matrimonial offences’ of adultery, desertion and cruelty. By the late 1960s, this fault-based underpinning had given divorce law a rather seedy reputation, spawning an industry of private detectives to provide evidence of infidelity or abuse for the courts and regular reports of divorce cases in the tabloid press. The government’s motivation for the new family law system, then, was to provide Australian couples with a more dignified and less acrimonious way to end their marital relationship, so they could move on with their independent lives.
Much has changed since then.
The nature of family life in Australia has evolved significantly since the 1970s, and families with children now reflect a great diversity of forms. While children who are raised by two biological parents in a nuclear family arrangement remain dominant, more than a quarter of Australian families with resident children do not fit this description. In particular, the past forty years have seen significant increases in unmarried and sole-parent families, as well as step-families, blended families, same sex families, and both formal and informal kinship care arrangements. There have also been significant changes in methods of family formation, including a growing use of assisted reproductive technologies and, more recently, surrogacy arrangements, to become parents.
Recent research also suggests that the modern family law system’s client base is very different to the one that was envisaged at the time it was created. While most separating families navigate the process of uncoupling without recourse to the legal system, many of those who engage with the services of the family law system – whether a family lawyer, a family dispute resolution service or a family court – have a range of complex support needs. This research also demonstrates that concerns about child safety are central to the system’s modern workload, and particularly to the work of the courts, and indicates that these cases often involve a co-occurrence of risk factors, such as family violence, drug or alcohol dependency and serious mental illness. These developments challenge the historical view of the family law system, and raise serious questions about the capacity and appropriateness of traditional adversarial processes for resolving disputes and for managing risk to children.
A third set of changes since the 1970s involve broader challenges to the practices and procedures of the family law system, problems that have become increasingly familiar in civil justice systems around the world. These hinge on growing concerns about the costs, formality and accessibility of courts and legal services, including concerns about hearing delays and the availability of legal assistance, as well as concerns about the cultural responsiveness and cultural safety of services for clients, and particularly for clients from Aboriginal and Torres Strait Islander families and culturally and linguistically diverse backgrounds.
The Terms of Reference for this Review ask the ALRC to explore the need for reform to each of these areas, including the processes for resolving disputes about the care of children and the division of property, the law governing their resolution, the professional practices and services needed to support client families, and questions of cost, accessibility and trust. It is a very large task that we have been given. I look forward to consulting widely across the community on these questions and to a considered and active engagement with all stakeholders throughout the Review.
Professor Helen Rhoades
Initial research and consultations are now underway. Over the next few weeks, the ALRC will constitute an Advisory Committee for the Review and will develop our consultation strategy.
The first consultation document of the Review will be an Issues Paper. At this stage, we anticipate it will be released in March 2018. The Issues Paper will provide an overview of issues surrounding the Review and will ask questions about the different matters raised in the Terms of Reference. With the release of the Issues Paper, the ALRC will call for submissions. These will help inform the next stages of the Review.
Following the Issues Paper we will begin a round of national consultations with individuals, community groups and organisations.
We expect to release a Discussion Paper in late August 2018. This will provide a detailed account of ALRC research to that point, and will include proposals for law reform. At that time we will again call for submissions, this time asking for feedback on the law reform proposals in the Discussion Paper.
The final Report, with recommendations for reform, will be delivered to the Attorney-General on 31 March 2019.
- More about the ALRC law reform process
The ALRC law reform process relies on as much stakeholder participation as possible. In this Review, we hope to engage individuals, advocacy groups, government and non-government organisations, academics and the legal and family dispute resolution professions.
The main way for people and organisations to contribute to the ALRC’s work is through making submissions. The ALRC makes a call for submissions at two stages – when it releases its Issues Paper and Discussion Paper.
You can also follow us on Twitter (@AusLawReform) and LinkedIn. (We will, where possible, use #ALRCfamlaw when discussing this Review).
We encourage you to promote the Review through your networks, and if you know of anyone you think might be interested in this Review, please invite them to subscribe to this e-news.