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.
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.