The ALRC was asked by the Family Law Council to join it in researching legal aid costs and related issues in repetitive access applications coming before the Family Court. The ALRC officially received a reference on the issue in May 1993.
One of the purposes of the reference was to determine and assess the disproportionate use of Family Court and legal aid resources by complex contact cases.
An Issues Paper Parent Child Contact and the Family Court (IP 14) was published in 1994.
The research for the report encompasses a survey of the nature of ‘intractable contact cases’ and an analysis of reasons for these protracted disputes.
- In contact matters, the best interests of the child should be the paramount consideration (as required by the United Nations Convention on the Rights of the Child).
- Courts should be more robust in refusing to make contact orders where it is not in the best interests of the child to order contact. This particularly applies to cases in which children are exposed or at risk of exposure to violence.
- There should be greater use of contact centres to provide neutral supervision of contact handovers and visits.
- The focus in managing complex contact cases should be on early identification and prevention through education, training and use of appropriate and effective alternative dispute resolution (ADR).
- Enforcement procedures should be fairer and simpler for parents who have legitimate complaints about compliance with contact orders.
The federal Government’s Justice Statement of May 1995 reflected a number of the recommendations made in ALRC Report 73. At that time, the Government allocated $5.3 million to establish a pilot program of handover and visit centres. Handover centres continue to be established with federal Government funding and other forms of support. The government has also pursued alternative dispute resolution options within the court system and in conjunction with family disputes.
The Family Law Reform Act 1995 (Cth) replaced the concepts of access, custody and guardianship with updated concepts of residence and contact and a new regime of parenting plans to sharpen the primary focus on the best interests of children. It also facilitates mediation. Other provisions recognise the effects of family violence and require the safety of family members to be taken into account when court orders are being made. This is consistent with the Commission’s recommendations in ALRC Report 73.
The involvement of children in family law matters was further considered as part of the joint report of the ALRC and the Human Rights and Equal Opportunity Commission: Seen and Heard: Priority for Children in the Legal Process (ALRC Report 84).
Case management issues in the Family Court were considered as a part of the ALRC’s report Managing Justice: A review of the federal civil justice system (ALRC Report 89).
The management of complex children’s matters in the family law system has changed significantly since the publication of ALRC 73. Key initiatives have included:
- the Magellan project in the Family Court of Australia (1998) and Columbus project in the Family Court of Western Australia (2001), each of which led to changes to the management of cases involving allegations of child abuse;
- the introduction of less adversarial trial management in the Family Court of Australia, initiated by the Children’s Cases Program (2004) but given legislative basis with the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth); and
- the establishment of Family Relationship Centres around Australia (commencing 2006), with a focus on improving communication within separating families, and family dispute resolution prior to commencment of court proceedings.