Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133)

The Australian Law Reform Commission report, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133), was tabled in Parliament by the Attorney-General, the Hon Christian Porter MP, on 28 March 2018

The Report contains 35 recommendations designed to reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander peoples and improve community safety. 

This publication is available for purchase in book format.

A Summary Report is also available.

This Summary Report provides an accessible overview of the policy framework and recommendations in the Report, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133), tabled on 28 March 2018.

This publication is available for purchase in book format.

Question 20          What changes to court processes could be made to facilitate the timely and cost-effective resolution of family law disputes?

Question 21          Should courts provide greater opportunities for parties involved in litigation to be diverted to other dispute resolution processes or services to facilitate earlier resolution of disputes?

Question 22          How can current dispute resolution processes be modified to provide effective low-cost options for resolving small property matters?

Question 23          How can parties who have experienced family violence or abuse be better supported at court?

Question 24          Should legally-assisted family dispute resolution processes play a greater role in the resolution of disputes involving family violence or abuse?

Question 25          How should the family law system address misuse of process as a form of abuse in family law matters?

Question 26          In what ways could non-adjudicative dispute resolution processes, such as family dispute resolution and conciliation, be developed or expanded to better support families to resolve disputes in a timely and cost-effective way?

Question 27          Is there scope to increase the use of arbitration in family disputes? How could this be done?

Question 28          Should online dispute resolution processes play a greater role in helping people to resolve family law matters in Australia? If so, how can these processes be best supported, and what safeguards should be incorporated into their development?

Question 29          Is there scope for problem solving decision-making processes to be developed within the family law system to help manage risk to children in families with complex needs? How could this be done?

Question 30          Should family inclusive decision-making processes be incorporated into the family law system? How could this be done?

This Issues Paper was released on 14 March 2018.

The ALRC invites submissions in response to the commentary, analysis and questions in the Issues Paper.

If your submission contains information about a court proceeding, including a proceeding under the Family Law Act 1975, you should carefully consider the terms of any order made by a court in that proceeding relating to the disclosure of information. For example, it is an offence under s 102PK of the Family Law Act 1975 to contravene a suppression order or a non-publication order made under s 102PE of the Family Law Act 1975. The ALRC cannot publish submissions that identify parties to family law proceedings, and any submissions that do so will be treated as confidential. 

Submissions close 7 May 2018.

The closing date for submissions to this Issues Paper is 7 May 2018.

Online submission form

The ALRC strongly encourages online submissions directly through the ALRC website where an online submission form will allow you to respond to individual proposals and questions: <www.alrc.gov.au/content/family-law-system-ip48-submission> Once you have logged into the site, you will be able to save your work, edit your responses, and leave and re-enter the site as many times as you need to before lodging your final submission. You may respond to as many or as few proposals and questions as you wish. There is space at the end of the form for any additional comments.

Further instructions are available on the site. If you have any difficulties using the online submission form, please email [email protected], or phone +61 2 8238 6305.

Alternatively, pre-prepared submissions may be mailed, faxed or emailed, to:

The Executive Director
Australian Law Reform Commission
GPO Box 3708
Sydney NSW 2001
Email: [email protected]
Facsimile: +61 2 8238 6363

Open inquiry policy

As submissions provide important evidence to each inquiry, it is common for the ALRC to draw upon the contents of submissions and quote from them or refer to them in publications.

The ALRC accepts public and confidential submissions. Public submissions are published on the ALRC website. The ALRC removes private addresses and contact details before publishing submissions.

Confidential submissions are not published, but may still be the subject of a Freedom of Information request. The ALRC treats each submission as public unless there is a clear indication that a submission is intended to be confidential.

The ALRC does not publish anonymous submissions. The ALRC does not publish submissions that breach applicable laws, that may be defamatory, or that may breach the privacy of any individual, including the submitter. The ALRC may in some cases withhold the name of a submitter for privacy considerations. Publication of public submissions is at the discretion of the ALRC.

If your submission contains information about a court proceeding, including a proceeding under the Family Law Act 1975 (Cth) (Family Law Act), you should carefully consider the terms of any order made by a court in that proceeding relating to the disclosure of information. For example, it is an offence under s 102PK of the Family Law Act to contravene a suppression order or a non-publication order made under s 102PE of the Family Law Act. The ALRC cannot publish submissions that identify parties to family law proceedings, and any submissions that do so will be treated as confidential.

See the ALRC policy on submissions and inquiry material for more information: www.alrc.gov.au/about/making-submission.

1             On 17 August 2017, the then Attorney-General of Australia, Senator the Hon George Brandis QC, asked the Australian Law Reform Commission (ALRC) to review the family law system, commencing from 1 October 2017.

2             This Issues Paper is the first consultation document in the Inquiry. It introduces the issues covered by the Terms of Reference and asks questions to assist in the development of reform responses through submissions from stakeholders. The submissions and further consultation rounds will inform the next stages of the process: a Discussion Paper, planned for release in September 2018; and the Final Report in March 2019.

Scope of this review

3             The Terms of Reference for this Inquiry ask the ALRC to consider reform to the family law system. A number of matters are particularly highlighted for consideration. Taken together, the Terms of Reference require the ALRC to consider the appropriate role of the family law system in contemporary Australia and how it can be responsive to the needs of diverse families and family structures.

4             This includes considering how to encourage the resolution of family disputes as quickly and affordably as possible, and in a way that is the least harmful, and most protective, of the safety and wellbeing of all involved, particularly children. It also involves considering whether reform is needed to the substantive law governing decisions about parenting and property disputes. Further questions arise about the need for reform to the culture, structure and governance of the family law system. Reflecting this focus, and the preliminary consultations the ALRC has undertaken, this Issues Paper is divided into eight sections that address these issues. These sections focus on questions about:

1.  the objectives of the contemporary family law system and the principles that should guide its work with client families;
2.  the barriers that affect access to and engagement with the system and how these can be addressed;
3.  whether legislative changes are needed to ensure the law is clear and comprehensible for the people who need to use it and supports decision makers to determine safe and developmentally healthy arrangements for children and the appropriate division of resources on separation;
4.  whether the system’s processes for resolving and adjudicating disputes are well adapted to meet the needs of separated families;
5.  the development of integrated services for families with complex needs;
6.  how best to support the involvement of children in the family law system;
7.  the competencies and skills required of family law system professionals and ensuring these are maintained; and
8.  the system’s governance practices and accountability mechanisms.

5             There are a number of matters that are not referred to in the Terms of Reference. These include the operation of the child support scheme, the structure of the family courts, and matters of state and territory responsibility, such as Australia’s child protection systems. However, as these issues are closely related to and frequently interact with the family law system, concerns about the intersections and cooperation between these systems are matters that the ALRC will consider in the course of this Inquiry.

Approach to this review

6             As noted in the Terms of Reference, this Inquiry builds on a number of earlier reviews that examined aspects of the family law system. These have included reviews of the issues of parentage law, child support, family violence, access to justice arrangements, the needs of Aboriginal and Torres Strait Islander clients, and the interactions between the Commonwealth family law system and state and territory child protection systems. A list of the relevant reports is set out below in the section on Objectives and Principles.

7             The ALRC is aware that many stakeholders have engaged with a number of the previous reviews. In conducting its work on this Inquiry, the ALRC will have regard to the reports of these reviews and will consider the publicly available submissions to them.

8             However, the ALRC does not propose to revisit each of the matters that have been examined elsewhere. The Commission’s work on this Inquiry is focused on the opportunity provided by the Terms of Reference to consider the redevelopment of the family law system as a whole, in an integrated and holistic, rather than piecemeal, way.

9             In doing so, the ALRC will adopt a client-centred perspective, consistent with the emphasis in the Terms of Reference on the needs of families and individuals who use the system or wish to access its services. The ALRC is therefore interested in hearing about the experiences of people who have used the system and the challenges that users have faced in accessing or navigating its services to resolve family problems, as well as experiences of positive engagements with the system.

10          To support this analysis, the ALRC would welcome anonymised case studies that support submissions about how particular issues, practices or elements of the system have been experienced by client families and their children.

Getting involved

11          This Issues Paper is intended to encourage informed community participation by providing some background information and highlighting the issues so far identified by the ALRC as relevant to the areas listed in the Terms of Reference. The Issues Paper may be downloaded free of charge from the ALRC website: <www.alrc.gov.au>.

12          You can get involved in the Inquiry in a number of ways, including by making a submission and by participating in a consultation. The ALRC invites individuals and organisations to make submissions in response to specific questions, to any of the background material and analysis provided, or on any other matter within the Terms of Reference.

13          You can also confidentially tell us about your recent experience with the family law system at the ALRC ‘Tell Us Your Story’ page (accessible at www.alrc.gov.au/content/tell-us-your-story).

14          There is no specified format for submissions, although the questions provided in this document are intended to provide guidance for respondents. Submissions may be made in writing, by email, or by using the ALRC online submission form. Submissions made using the online submission form are preferred. You are encouraged to answer as many or as few of the questions in the Issues Paper as you wish. Stakeholders who have made a submission to a previous review are welcome to send the ALRC a copy of that submission with a covering letter attached.

15          Submissions using the ALRC online submission form can be made at: <https://www.alrc.gov.au/content/family-law-system-ip48-submission>. All submissions should reach the ALRC by 7 May 2018.

Open inquiry policy

16          As submissions provide important evidence to each inquiry, it is common for the ALRC to draw upon the contents of submissions and quote from them or refer to them in publications.

17          The ALRC accepts public and confidential submissions. Public submissions are published on the ALRC website. The ALRC removes private addresses and contact details before publishing submissions.

18          Confidential submissions, as well as stories provided through the ‘Tell Us Your Story’ page are not published, but may still be the subject of a Freedom of Information request. The ALRC treats each submission as public unless there is a clear indication that a submission is intended to be confidential.

19          The ALRC does not publish anonymous submissions. The ALRC does not publish submissions that breach applicable laws, that may be defamatory, or that may breach the privacy of any individual, including the submitter. The ALRC may in some cases withhold the name of a submitter for privacy considerations. Publication of public submissions is at the discretion of the ALRC.

20          If your submission, or a story provided to the ‘Tell Us Your Story’page, contains information about a court proceeding, including a proceeding under the Family Law Act 1975 (Cth) (Family Law Act), you should carefully consider the terms of any order made by a court in that proceeding relating to the disclosure of information. For example, it is an offence under s 102PK of the Family Law Act to contravene a suppression order or a non-publication order made under s 102PE of the Family Law Act. 

21          See the ALRC policy on submissions and inquiry material for more information: www.alrc.gov.au/about/making-submission.

Terms used in the Issues Paper

22          References to the ‘family law system’ in the Issues Paper refer collectively to the family courts (the Family Court of Australia, the Family Court of Western Australia and the Federal Circuit Court of Australia) and all family law and post-separation services, including family relationships services (such as government funded family counselling services, post-separation parenting programs, and children’s contact services) as well as legal aid, community legal sector and private legal services.

23          The Issues Paper also uses the term‘family courts’throughout. A wide range of courts may exercise jurisdiction under the Family Law Act 1975 (Cth) (Family Law Act), including the Family Court of Australia (Family Court), the Federal Circuit Court of Australia (Federal Circuit Court), the Family Court of Western Australia, and state and territory courts of summary jurisdiction (which include magistrates’ courts and some local and children’s courts). The term ‘family courts’ is used to refer to the principal courts exercising family law jurisdiction, namely the Family Court, the Federal Circuit Court and the Family Court of Western Australia. The term‘federal family courts’ is used to refer only to the Family Court and the Federal Circuit Court.

24          There are a number of different terms in use to describe violence committed against a family member or in a domestic setting, including family violence, domestic violence, domestic and family violence, intimate partner violence and domestic abuse. This Issues Paper generally uses the term ‘family violence’, as this is the term used in the Family Law Act.

25          A wide range of terms are used in different parts of Australia to refer to protective orders to prevent family violence, including Domestic Violence Orders (DVO), Apprehended Domestic Violence Orders (ADVO), Violence Restraining Orders (VRO), Domestic Violence Restraining Orders (DVRO), Family Violence Intervention Orders (FVIO) and Family Violence Orders (FVO). This Issues Paper uses the term ‘family violence protection orders’ to refer to all of these types of orders.

26          The term ‘child centred’ is used to refer to an approach that can be applied across different areas that provide services to children and families, including education, family services and child protection. The approach is one that prioritises the needs and interests of children. Child-centred policies and frameworks acknowledge and accommodate the developmental needs and timeframes in childhood and adolescence and support the involvement of children and young people in decisions that affect them.^[1]

27          The term ‘trauma-informed practice’ is used to refer to the provision of services in a way that is ‘based on knowledge and understanding of how trauma affects people’s lives and their service needs’.^[2] The Mental Health Coordinating Council has described this approach as being ‘informed by an understanding of the particular vulnerabilities and “triggers” that survivors of complex trauma experience’.^[3]

28          The term ‘disability’ is used in this Issues Paper to refer to physical, mental, intellectual or sensory disabilities, consistently with the United Nations Convention on the Rights of Persons with Disabilities^[4]and the Disability Discrimination Act 1992 (Cth).

29          In this Inquiry, the ALRC is considering what reforms are needed to the family law system to ensure it is able to meet the needs of families who seek its services. In this section, the ALRC asks about the role and objectives of the family law system in contemporary Australia, and what principles should guide its redevelopment.

The role and objectives of the family law system

30          Australia’s modern family law system began operation with the commencement of the Family Law Act 1975 (Cth) and the opening of the Family Court on 5 January 1976. Underpinning the development of these reforms were a number of policy objectives. These included a desire to:

• create a less punitive and more dignified divorce process than had existed under the former fault-based divorce system;^[5]
• provide divorcing couples with a ‘one-stop shop’ of legal and counselling services to help them resolve disputes;^[6] and
• establish a specialist national court for family law matters with an informal process.^[7]

31          As the preamble to the Terms of Reference for this Inquiry notes, Australian social and family life has changed a great deal since the time of these reforms. The past forty years have seen a diversification of family structures, including increased numbers of unmarried families, stepfamilies, blended families, same-sex families and kinship-care arrangements. Alongside this have been significant changes in the methods of family formation, including a reduction in the number of adoptions and a growing use of assisted conception procedures and surrogacy to achieve parenthood.

32          As these shifts have occurred, significant changes in the jurisdiction, structure and workload of the family law system have also taken place. These include changes to give effect to Australia’s obligations under the United Nations Convention on the Rights of the Child,^[8] and to ensure the Family Court can make orders about the children of unmarried parents and the property of unmarried couples. At the same time, approaches to dispute resolution have evolved substantially, with a growing emphasis on pre-filing and alternative dispute resolution processes, as well as more active judicial case management of litigated matters. The family courts have also seen increasing numbers of self-represented litigants.

33          Recent studies indicate that the nature of the family law system’s client base is also very different from the one that was envisaged at the time it was created. While most separating couples are able to work out their arrangements with limited or no recourse to the family law system, many of the families who do turn to the family law system for support have complex needs. These studies show that safety concerns for children are now a common feature of the family law system’s workload,^[9] and that many of the system’s client families are affected by issues that may pose a risk of harm to the child, including issues of family violence, mental ill-health and substance misuse.^[10]

34          The impact of this profile on the nature and workload of the family law system has been recognised in a number of recent reviews. This body of work includes:

• the Family Law Council’s 2012 reports, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients and Improving the Family Law System for Clients from Culturally and Linguistically Diverse Backgrounds;
• the Family Law Council’s 2013 report, Parentage and the Family Law Act;
• the Productivity Commission’s 2014 report, Access to Justice Arrangements;
• the Australian Institute of Family Studies’ 2014 Independent Children’s Lawyers Study;
• the Australian Institute of Family Studies’ 2015 reports on the evaluation of the 2012 family violence reforms;
• the 2015 report of the Queensland Special Taskforce on Domestic and Family Violence, Not Now, Not Ever;
• the Family Law Council’s interim (2015) and final (2016) reports on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems;
• the 2016 report of the Victorian Royal Commission into Family Violence;
• the final report of the Council of Australian Governments (COAG) Advisory Panel on Reducing Violence against Women and their Children (2016); and
• the 2017 report of the House of Representatives Standing Committee on Social Policy and Legal Affairs (SPLA Committee), A Better Family Law System to Support and Protect Those Affected by Family Violence (SPLA Family Violence Report).

35          These reports have highlighted a number of problems affecting families who use the family law system, including concerns about:

• difficulties that families face in seeking to achieve safe outcomes for children and victims of family violence;
• the growing cost of legal services and expert reports;
• increasing delays in the courts;
• the extent to which the system’s services support child-centred approaches and the participation of children in processes that affect them;
• the extent to which the provisions of the Family Law Act are applied consistently to all children irrespective of their family structure;
• the cultural responsiveness of mainstream family law services and the cultural safety of court processes for Aboriginal and Torres Strait Islander peoples and culturally and linguistically diverse clients;
• the difficulties that face clients in rural and remote areas of Australia in accessing family law services; and
• concerns about the adversarial nature of legal processes and the impact on parental and child wellbeing.

36          More broadly, these reviews reflect a growing debate about the role of the family law system in contemporary Australia, including questions about:

• the affordability of services and processes and the importance of costs being proportionate to the parties’ dispute;^[11]
• the ways in which the prevalence of cases involving safety concerns for children challenges the assumption of a clear distinction between the work of the family law, child protection and family violence systems in Australia, and the importance of collaboration across these jurisdictions;^[12]
• the ways in which the prevalence of families affected by ongoing conflict in the family law system challenges the conceptualisation of dispute resolution as a single event; and
• the appropriateness of adversarial processes, and the ethics of adversarial practices, in a system concerned with the wellbeing of children.^[13]

37          Reflecting these questions, stakeholders during early consultations suggested the importance to this Inquiry of clearly identifying the role and objectives of the contemporary family law system, as a basis for addressing the Terms of Reference.

38          Academic scholarship has suggested that a modern family law system has a number of key functions, including advancing the safety, healthy development and economic support interests of children, protecting adult rights to physical safety and equitable distribution of resources, and regulating the processes for resolving post-separation problems to ensure they are affordable and cost-effective.^[14]

39          The ALRC seeks stakeholder input about the objectives that would best express the appropriate role and functions of a contemporary family law system.

Principles to guide the redevelopment of the family law system

40          Early consultations also suggested the need to identify relevant principles, or values, that should guide the redevelopment of the family law system and support the achievement of its objectives.

41          Section 43 of the Family Law Act provides the following principles to be applied by the courts in the exercise of their jurisdiction under the Act:

(a)     the need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life;

(b)     the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;

(c)     the need to protect the rights of children and to promote their welfare;

(ca)   the need to ensure protection from family violence; and

(d)     the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.

42          Noting that these principles are largely unamended since the passage of the Act in 1975 (apart from the addition of a reference to protection from family violence), stakeholders suggested it is timely to consider whether they continue to provide appropriate guidance for the family courts.

43          The Terms of Reference for this Inquiry do not provide a comprehensive list of principles to be applied by the ALRC in undertaking this Inquiry. However, the preamble to the Terms of Reference notes a number of matters that are relevant, including:

• the importance of ensuring the Act meets the contemporary needs of families and individuals who need to have resort to the family law system;
• the importance of affording dignity and privacy to separating families; 

• the importance of public understanding and confidence in the family law system;
• the desirability of encouraging the resolution of family disputes at the earliest opportunity and in the least costly and harmful manner; and
• the paramount importance of protecting the needs of the children of separating families. 


44          A number of additional principles were proposed during preliminary consultations for this Inquiry, including suggestions that the family law system should:

• be child centred and trauma informed;
• ensure equality of treatment for children regardless of their family structure;
• foster ethical professional practices; and
• promote a learning culture.

45          The ALRC is seeking stakeholder input on the question of whether an overarching set of principles should be developed for the family law system and, if so, what principles would be appropriate to guide its work in its modern social context.

46          Ensuring the family law system is accessible to all families who require its services is a critical element of ensuring access to justice.^[15] Accessibility of services is also critical to the system’s ability to protect the welfare of children of separated parents, which is a central tenet of the Family Law Act. This section asks how access to the family law system might be improved, including through enhanced access to information and assistance to navigate the different services and processes within the family law system. The ALRC also invites comment on how access to the family law system could be improved for particular groups, including Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse backgrounds, people with disability, and people living in rural, regional and remote areas of Australia.

47          As the cost of legal and other services can be a significant barrier to access to justice,^[16] the ALRC also asks what changes could be made to the family law system to allow family disputes to be resolved more affordably. Finally, the ALRC asks what improvements could be made to the court environment and court procedures to support people to engage in the family law system, particularly for self-represented parties and people with security concerns.

Access to information and navigation assistance

Access to information

48          People using the family law system can find it difficult to access information about family law and family law related services. In consultations, the ALRC heard concerns that:

• court websites can be difficult to navigate for both clients and professionals;
• readily available information for clients about family law proceedings and the family law system’s processes and services is limited;
• information catering to people with language and/or literacy barriers is limited; and
• clients find it difficult to access information that would allow them to identify and connect with relevant legal and non-legal services.^[17]

49          Stakeholders also commented that there is limited accessible information available for children, noting that a lack of information can increase the anxiety and trauma children experience in these circumstances.^[18]

50          The ALRC notes that National Legal Aid has received funding to develop a community legal education resource, including a website, about interactions between the family law, family violence and child protection systems. The ALRC is interested in feedback about what other changes could be made to improve access to information in the family law system.

Navigation assistance

51          Client families and individuals can find it difficult to navigate the family law system, particularly where they have a range of legal and support needs requiring engagement with multiple services.

52          One possible method of addressing this issue is to have a case worker or ‘navigator’ available to assist individuals or families with multiple needs to navigate the family law system, from the time of first contact to resolution. A navigator could assist clients to identify and access services that are relevant to their needs, as well as monitor the person’s engagement with these services and assist them through the court process where appropriate.

53          Navigators have been used to address barriers to access in the health sector since the 1990s, assisting patients to access information, engage with services, coordinate multiple service providers, overcome language, cultural, economic barriers and service mistrust as well as to support patients to advocate for themselves.^[19]

54          An example of how navigation assistance can be provided in the justice sector can be seen in the role of the Neighbourhood Justice Officer (NJO)^[20] at the Neighbourhood Justice Centre in Victoria.^[21] The NJO assists court clients to identify and connect with appropriate services, such as mental health, financial counselling and drug and alcohol rehabilitation services. In some cases, where the matter has been adjourned to give a client time to engage such services, the NJO is able to report back to the court on the client’s progress. The need for appropriate qualifications and training for navigators is considered below in the section, ‘Professional skills’.

55          An example of how navigation assistance is currently provided within the family law system is the role of the Family Safety Practitioner, which is a component of the Family Safety Model run by Relationships Australia Victoria. This model is discussed in more detail below in the section, ‘Integration and collaboration’. A key part of the Family Safety Practitioner role entails identifying the service needs of each family member and facilitating warm referrals to these services, which might include referrals for legal advice, counselling or housing assistance. The Family Safety Practitioner also supports family members with transitions between services and monitors the family’s engagement with them.

56          The recently developed Family Advocacy and Support Service (FASS), discussed below in the section, ‘Integration and collaboration’, also goes some way to assisting clients to navigate the family law system by providing them with information and legal advice in relation to relevant state and territory matters as well as federal family law matters, and by providing clients with warm referrals to support services relevant to their needs.

57          Technology might also be used to assist client families to navigate the family law system.^[22] The ALRC notes that the Neighbourhood Justice Centre uses a Court Triage Service and a mobile app which provide a digital link and coordination system for registry staff, judicial officers, lawyers, clinicians and court users. This includes SMS alerts delivered to the client’s phone with updates on the progress of their matter and reminders about court events. In the UK, the CourtNav program assists self-represented litigants to understand procedural requirements and walks them through the process of completing forms using questions online.^[23]

58          The ALRC is interested in how these or other models could be expanded to provide navigation assistance to families with complex needs from the time of first contact throughout their engagement with the family law system.

Aboriginal and Torres Strait Islander communities

59          Reviews over a number of years have reported that mainstream family law services are not designed or delivered in a way that recognises the lived experiences of Aboriginal and Torres Strait Islander people.

60          These reports have highlighted the range of barriers affecting access to the family law system for Aboriginal and Torres Strait Islander clients, including issues of cost, language, cultural safety and geographic and physical accessibility. These reports recognise the cultural and geographic diversity of Aboriginal and Torres Strait Islander peoples,^[24] and that questions relating to access to family law services and the courts for Aboriginal and Torres Strait Islander families are inseparable from the history of colonisation, dispossession of land and forced removal from country and the separation of children from families through historic government policies of child removal.^[25]

61          A range of recommendations have been made to enhance accessibility of the family law system for Aboriginal and Torres Strait Islander communities and provide families with culturally safe services.^[26] These have included recommendations for:

• the development and delivery of family law system responses, including planning and dispute resolution processes, by or in conjunction with Aboriginal and Torres Strait Islander communities and organisations;^[27]
• embedding workers from Aboriginal and Torres Strait Islander specific services in the family courts and Family Relationship Centres as liaison officers;^[28]
• strategies to support the development of an Aboriginal and Torres Strait Islander workforce across the family law system, including the appointment of Indigenous counsellors, lawyers, family dispute resolution practitioner and judicial officers; and

• developing tailored education programs about the family law and child protection systems for Aboriginal and Torres Strait Islander communities.

62          In 2017, the SPLA Committee recommended that, ‘as a matter of urgency’, the Australian Government implement the Family Law Council’s recommendations from its 2012 Report, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, as well as the Council’s additional recommendations in its 2016 report on families with complex needs ‘as they relate to Aboriginal and Torres Strait Islander families’.^[29] These included recommendations for:

• the provision of culturally secure family assessment reports in matters involving Aboriginal and Torres Strait Islander children;^[30]
• the development of culturally secure court hearing processes in the family courts similar to those applied in state and territory Koori and Murri courts;^[31] and
• a greater use of cultural healing and trauma-recovery approaches that are grounded in Indigenous knowledge.^[32]

63          Some reports have also questioned the appropriateness of family law system responses to family violence for Aboriginal and Torres Strait Islander peoples,^[33] including the effectiveness of mainstream conceptualisations and responses to family violence in Aboriginal and Torres Strait Islander communities.^[34] In particular, recent research^[35] and submissions to the SPLA Inquiry^[36] have raised questions about the implications for Aboriginal women of the coercive control paradigm in the Family Law Act’s definition of family violence.

64          These challenges point to the need to better understand the dynamics in which family violence occurs within Aboriginal and Torres Strait Islander families and communities to ensure meaningful access to the family law system for Aboriginal and Torres Strait Islander clients.

65          The ALRC acknowledges the many submissions that have been made to previous reviews about how access to the family law system for Aboriginal and Torres Strait Islander people can be improved and will have regard to these and earlier reports and recommendations in conducting its work on this Inquiry. The ALRC also welcomes additional input from stakeholders about these questions.

Culturally and linguistically diverse clients

66          In 2017, the SPLA Committee concluded that ‘the family law system is not currently accessible, equitable, responsive’ to culturally and linguistically diverse families, nor is it one which ‘prioritises the[ir] safety’.^[37]

67          According to the 2016 Census, more than one quarter (26%) of Australians were born overseas, 49% of all Australians were born overseas or had at least one parent born overseas, and more than one fifth (21%) of the population spoke a language other than English at home.^[38] However, research has suggested that people from culturally and linguistically diverse backgrounds are underrepresented as users of the family law system.^[39] While many people from such communities may prefer to resolve family problems privately, or with the assistance of culturally-specific conflict resolution services, the Family Law Council’s 2012 work suggests there is also a desire for equality of access to the services of the family law system.^[40]

68          A number of interrelated issues produce barriers to access to the family law system. People from culturally and linguistically diverse backgrounds, particularly those from newly arrived or refugee communities, may have limited knowledge and understanding of the Australian family law system.^[41] Access to information about family law can often be impeded by language and literacy barriers: information about family law and family law services may not be available in some community languages, and limited literacy even in a person’s own community language may mean that even where available, translated material is not accessible.^[42]

69          Where culturally and linguistically diverse clients do engage with the family law system, concerns have been raised about the availability and quality of interpreting services acting as a barrier to effective participation.^[43] Additionally, concerns exist about the availability of culturally appropriate services, and levels of cultural competency among professionals in the family law system.^[44]

70          People from culturally and linguistically diverse backgrounds who experience family violence face additional barriers in accessing family law services, which may include a lack of understanding by family law system professionals about culturally-specific instances of family violence and cultural norms and pressures relating to disclosure of family violence.^[45] Another factor affecting the family law system needs of people in newly arrived communities is a high rate of intergenerational conflict, which can lead to inter-parent conflict and marriage breakdown.^[46]

71          In 2012, the Family Law Council made a number of recommendations to improve the family law system for clients from culturally and linguistically diverse backgrounds, implementation of which was also recommended in the SPLA Family Violence Report.^[47] These included recommendations to improve:

• community education about family law and family law services;
• cultural competency in the family law system;
• service integration;
• numbers of culturally and linguistically diverse personnel working within family law system services;
• engagement and collaboration with culturally and linguistically diverse communities in the development, delivery and evaluation of services; and
• the use of interpreters in the family law system.^[48]

72          In June 2017, pilots of legally-assisted and culturally-appropriate dispute resolution began in eight Family Relationship Centres across Australia, with the aim of assisting families to resolve post-separation disputes in a safe and culturally-appropriate way.^[49] The ALRC seeks stakeholder input on initiatives such as these, and any other ways that access to family law services for clients from culturally and linguistically diverse communities could be improved.

People with disability

73          People with disability may engage with the family law system in a range of ways:

• adults with disability may be involved as parties to parenting and property matters;
• children with disability may be the subject of disputes in parenting matters;
• responsibility for the care of children with disability may be a relevant consideration in property proceedings; and
• children with disability may engage with the court in the exercise of its welfare jurisdiction.

74          Associated with these, a number of barriers to access to justice have been identified.

75          Particular concerns have been raised in relation to the safety needs of women and girls with disability. Women and girls with disability are twice as likely as women and girls without disability to experience violence during their lives.^[50] They are also more likely to experience violence over a longer timeframe, resulting in more severe trauma, and are more vulnerable to particular types of abuse, such as sexual assault, financial abuse and forced or coerced sterilisation.^[51]

76          Service providers may not have a clear understanding of how to identify and support both adults and children with disability who experience violence. Within the family law system, one potential consequence of such lack of expertise is that disclosures of sexual abuse by girls who have an intellectual disability may not be believed.^[52]

77          People with disability may also face barriers to participating in court, such as communication barriers, difficulties accessing the necessary supports to participate effectively in proceedings, and in giving instructions to legal representatives.^[53] This creates the potential for parents with disability to be disadvantaged in achieving orders for the care of children in family law proceedings.

78          In a family law proceeding, a person with disability may have a litigation or case guardian appointed, whose role is to act in the place of the person with a disability and take responsibility for the conduct of the proceedings. The Family Law Rules 2004 (Cth)provide that a person with a disability ‘may start, continue, respond to, or seek to intervene in, a case only by a case guardian’.^[54] A person with disability is defined in the Family Law Rules as a person who, because of a physical or mental disability, does not understand the nature or possible consequences of the case, or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.^[55] A similar provision in the Federal Circuit Court Rules 2001 (Cth) allows for the appointment of a litigation guardian.^[56]

79          A person with a disability may face difficulties in having a guardian appointed to assist them because of concerns about perceived exposure to liability and the uncertain funding of the litigation.^[57] In some cases, indefinite delays to proceedings have been experienced where no litigation or case guardian is available for appointment, with ‘very serious consequences for the parties involved; and particularly for any children involved in the proceedings’.^[58] Concerns have also been raised about the limited information available to guide litigation guardians in exercising their responsibilities.^[59]

80          A litigation or case guardian acts as a ‘substitute decision maker’ for a person with disability—that is, the guardian makes decisions on behalf of the person with disability. Broader concerns exist about how supported decision making might be facilitated in family law processes—that is, how a person with disability might be supported to participate in the court process and to make their own decisions in family law proceedings. Promoting supported decision making is consistent with the recognition in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) that people with disability enjoy legal capacity on an equal basis with others and should be provided with access to the support they require to exercise their legal capacity.^[60]

81          The level of understanding of disability held by judicial officers and legal practitioners and other professionals working in the family law system may also act as a barrier to access to justice. Limited understanding of how disability can affect a parent in a family law matter may see a parent lose their care role, or be persuaded to consent to limited contact arrangements, because of assumptions made about a person’s parenting capacity or capacity to manage the stresses of litigation.^[61] A parent with disability may sometimes incur the additional expense of securing a specialist report that can address the issue of their disability because of a lack of particular expertise among family consultants.^[62]

82          As noted, children with disability may be involved in the family law system, either as the subject of disputes in relation to their care, or in the exercise of the Family Court’s welfare jurisdiction.^[63] There may be concerns about the extent to which these children are supported to express their views and to be heard in the court process.^[64] The welfare power is discussed further below in the section, ‘Legal principles in relation to parenting and property’.

83          A number of suggestions have been made to address access to justice issues for people with disability, including:

• improved awareness of the types of violence experienced by people with disability, as well as cross-sector collaboration with disability-specific services.^[65]
• training and accreditation for family law system professionals to enhance their competency in working with parents and children with disability; and
• incorporating relevant provisions of the CRPD into the Family Law Act.^[66]

84          The ALRC seeks stakeholder input about these issues.

Lesbian, gay, bisexual, transgender, intersex and queer clients

85          Australian Bureau of Statistics (ABS) Census data in 2016 recorded higher numbers of same-sex couples than previous counts. Just under 46,800 same-sex couples living under the same roof were recorded, representing a 36% increase since the 2011 Census.^[67] Same-sex couples account for 0.9% of all couples in Australia, with slightly more same-sex male couples (23,700) than female (23,000).^[68] For the first time, the 2016 Census collected information on sex and gender diversity by allowing other than male/female responses in relation to questions about gender.^[69] ‘Intentional and valid’ responses indicating sex/gender diversity were provided by 1260 respondents, which the ABS considers an under count for methodological reasons.

86          Access issues for LGBTIQ people need to be contextualised within an understanding of the recency of the legal recognition of same-sex relationships. Following the commencement of the Marriage Amendment (Definitions and Religious Freedoms) Act 2017 (Cth) on 9 December 2017, ‘the right to marry is no longer determined by sex or gender’ at the federal level.^[70]

87          Although there has been a sustained focus on marriage equality over many years in the human rights sphere,^[71] in the family law system there has been limited attention paid to the extent to which it is equipped to meet the needs of clients in LGBTIQ groups.

88          For property matters, the federal family law system has been available to people in non-heterosexual relationships since 2009, provided the relationship falls within the definition of ‘de facto’ in s 4AA(1) of the Family Law Act.

89          In relation to parenting matters, recognition of same-sex parenthood is complex and will depend on whether a child was conceived using reproductive technology and the circumstances in which this occurred. Reforms to provisions recognising partners of women who conceive through artificial conception as parents were enacted in 2008 and provide recognition for lesbian co-parents in some circumstances (Family Law Act s 60H). These provisions do not cover children of male same-sex relationships and academic critiques have argued that despite these reforms, non-biological lesbian co-mothers continue ‘to be treated as secondary figures in their children’s lives’.^[72] The Family Law Council considered the parentage provisions of the Family Law Act in 2013 and concluded that the present legal framework did not ‘reflect the reality of parenting and family life for many children in Australia’.^[73]

90          Transgender and intersex^[74] children may also be engaged in the family law system in the exercise of the Family Court’s welfare jurisdiction relating to approval for medical interventions related to their gender identity.^[75] Similarly to children with disability who may be subject to the court’s welfare jurisdiction, concerns exist about the opportunity for children to participate in this process.^[76] The welfare power is discussed further below in the section, ‘Legal principles in relation to parenting and property’.

91          There is limited information available on the issues that people from LGBTIQ groups face in accessing the family law system. A 2017 study based on interviews with 24 people who had experienced separations involving children in same-sex couple contexts reported that these people had experienced ‘an added layer of difficulty to their separation process due to their concerns around finding the support of a service provider’.^[77] Feedback from participants suggested that while some LGBTIQ families had enjoyed positive experiences of mainstream services, others felt such services did not understand their position and were poorly equipped to meet their needs. Out of the range of separation related services used—counselling, mediation, Family Relationship Centres and lawyers—positive experiences were least likely to be reported with lawyers. Particularly poor experiences were reported by non-biological parents (mostly women due to the composition of the sample).^[78]

92          The SPLA Family Violence Report said that ‘multiple submissions noted a need for improvement in the quality and accessibility of services for people from LGBTIQ communities’ and recommended that family law professionals receive ‘training on working with these groups to ensure that the family law system is accessible and responsive’.^[79]

93          Access barriers due to limited professional knowledge may also arise in relation to LGBTIQ people who experience family violence. While the evidence base on family violence among these groups is underdeveloped, the indications are that prevalence rates are similar to those in the general population.^[80] A key issue for young people in these groups is that they may experience violence from family members as a result of their sexuality or gender identity.^[81] In addition to the forms of family violence that occur generally, people in these groups may experience other types of violence arising from their sexuality or gender identity, such as threats to reveal this identity to those who may be unaware of it. The Victorian Royal Commission into Family Violence highlighted a significant need for improvement in understanding of and response to this issue.^[82]

94          The existing evidence and initial consultations for this Inquiry suggest a need for consideration of the extent to which services in the family law system are presently configured to respond to the needs of clients from LGBTIQ groups. The ALRC welcomes further stakeholder input about this issue.

People living in rural, regional and remote areas

95          In 2009, 69% of Australians lived in major cities, 20% lived in inner regional areas, 9% in outer regional areas and around 2.3% lived in remote or very remote areas. Those living in remote or very remote areas are more likely to be Aboriginal or Torres Strait Islander people, and a greater proportion of those in very remote areas live in multi-family households.^[83]

96          While some regional areas are well served by family law services, others may face a number of access challenges. People living in rural, regional and remote Australia can face geographical barriers to accessing the family law system and its associated services, which are predominantly located in major metropolitan areas.^[84] Geographic isolation from such services is often compounded by limited public transport, and the expense of private transport. People living in remote communities in particular may have to travel great distances to reach services and family law courts located in regional areas.^[85]

97          In those locations where in-person legal services are available, a further barrier to accessing the family law system may arise where the services available are insufficient to avoid a conflict of interest, meaning both parties to the dispute are not able to seek advice.^[86]

98          Aboriginal and Torres Strait Islander people living in rural, regional and remote areas can face additional barriers to accessing the family law system. These include the overarching issues of poorer socio-economic, health and education outcomes for Aboriginal and Torres Strait Islander people living in remote communities.^[87] Specialist family law assistance for Aboriginal and Torres Strait Islander people is also limited in rural, regional and remote areas,^[88] and while some mainstream services are available in these locations, Aboriginal and Torres Strait Islander people may not engage with them due to concerns that these are not culturally secure or appropriate.^[89]

99          In addition, Aboriginal and Torres Strait Islander people may speak English as an additional language and face further barriers to access because of limited availability of interpreter services in regional and remote locations, or limited familiarity of interpreters with the family law system.^[90]

100       People experiencing family violence in rural, regional and remote areas can also experience additional barriers to accessing the family law system, such as a lack of available support services, including crisis accommodation, particularly where access to finances or transport is limited.^[91] Where services are available, a feeling of ‘visibility’—that is, the likelihood that the person who has experienced and the person who used violence will be both known to local support workers—may impede disclosing family violence and seeking assistance.^[92]

101       Suggestions for improving access for people in rural, regional and remote areas have included making greater use of communication technology to provide services, including for court appearances and conferencing, coupled with efforts to improve availability of such technology, as well as to improve digital literacy.^[93] For Aboriginal and Torres Strait Islander clients in rural and remote areas, access to justice may be improved by measures including increasing the availability and family law expertise of interpreters in these locations,^[94] improving the cultural competency of mainstream services in these areas, and improved collaboration with Aboriginal and Torres Strait Islander specific services.^[95]

Costs and access to the family law system

102       The SPLA Family Violence Report noted that the costs associated with seeking negotiated or adjudicated outcomes in the family law system can sometimes impoverish families,^[96]particularly in the context of the significant limitations on the availability of publicly subsidised legal services and legal aid.^[97]

103       The SPLA Family Violence Report indicated that on multiple occasions the Committee was told of legal costs in family law matters that had amounted to over $100,000.^[98] For example, Women’s Legal Services Australia observed that it is common for legal fees in this range to accumulate if the family law matter has been ongoing over a course of two or three years, and that these costs can create an imperative for vulnerable parties to settle the matter in a way that falls short of meeting their legal entitlements or protective needs.^[99] The National Association of Community Legal Centres also noted that people who are ineligible for legal aid but earn less than $50,000 or $60,000 a year are unable to afford the private legal fees necessary to access the family law system.^[100]

104       Australian Institute of Family Studies (AIFS) research has shown that the median personal income for separated parents some 12 months after separation is $55,000 for fathers and $33,800 for mothers.^[101] Financial stress among this cohort is common, with only 37.4% of fathers and 26% of mothers not reporting one of seven potential indicators of financial stress, such as being unable to pay bills on time.^[102] These data suggest that incurring legal costs in relation to a family law dispute would be unsustainable for many separated families.

105       Among the factors that contribute to the high costs of litigation are court delays, multiple court hearings, and lack of compliance with court orders.^[103] In children’s matters, costs can be associated with obtaining a private family report. The SPLA Committee noted that these reports can cost many thousands of dollars, depending on the experience and reputation of the report writer.^[104] The SPLACommittee recommended the development of a fee schedule to regulate the costs of family reports and other expert witnesses.^[105]

106       The Productivity Commission’s Access to Justice Arrangements Report also highlighted the limited availability in the family law system of resolution avenues that are proportionate to the issues in dispute.^[106] It noted that financial barriers to accessing the family courts may lead parties to not act on their legal problems, to not seek legal advice, or to withdraw from or settle cases prematurely.^[107] In these circumstances, parties may agree to unsafe, unfair or unworkable arrangements. This may leave children exposed to ongoing parental conflict or family violence, with significant negative impacts on their wellbeing.^[108] Parties who have experienced violence may also be exposed to continuing violence through these arrangements or feel pressured to accept unfair property settlements that leave them and their children financially disadvantaged post-separation.^[109]

107       The Productivity Commission suggested that the resolution of less complex family law matters was best achieved through expanded availability of low-cost family dispute resolution (FDR) services and affordable legal advice on parenting and financial issues, especially in matters involving family violence.^[110] As noted in the section, ‘Resolution and adjudication processes’, it argued that increased use of FDR would reduce the expense involved in litigating in the family courts when resolving a dispute. It proposed augmenting the availability of low-cost resolution mechanisms, such as offering FDR for property and financial matters, and simplifying the law applicable to these cases.

108       The Productivity Commission also raised a range of other possible strategies to address cost related access barriers. One involves ‘unbundling’ of legal services—that is, separating the legal services that are necessary for dispute resolution into their constituent parts and offering these discrete services for a fee. The constituent parts of ‘unbundled’ legal assistance fall into three main categories: general counselling and legal advice, preparation or assistance with drafting of documents or pleadings, and court appearances.^[111]

109       The ALRC invites stakeholder comment on these and other means to reduce costs associated with resolving family law matters.

Self-represented parties

110       Self-representation has become an increasingly common feature of family law litigation, affecting around half of the family law trials in the Federal Circuit Court^[112] and the Family Court of Western Australia.^[113] While not all litigants who self-represent do so for the same reasons,^[114] evidence from other jurisdictions reveals that many parties who do so find access to justice difficult to exercise.^[115] Despite this, some stakeholders have suggested that family law litigation involving parties without legal representation is likely to grow, as the costs of legal services become less affordable for many families.

111       One set of challenges facing parties who self-represent concerns the commencement of proceedings, which requires knowledge about such things as:

• the correct forms to use and how to complete them;
• what documents to prepare and how to file them; and
• what evidence is needed to support the person’s case and how to obtain it.^[116]

112       Much of this process relies on legal know-how, including an understanding of concepts such as disclosure and subpoenas.^[117] The SPLA Family Violence Report also highlighted particular confusion about the operation of different rules and procedures in the Family Court of Australia and the Federal Circuit Court, which can exacerbate the difficulties for self-represented parties in identifying the correct forms.^[118]

113       Self-represented litigants face further challenges in presenting their case to the court. Court procedures are designed for the use of legal professionals. The presence of a self-representing party complicates the normal communication patterns in court, and alters the role of the judicial officer.^[119] Although appellate court guidelines require the judges of the family courts to actively intervene to ensure a self-represented litigant is afforded procedural fairness,^[120] some commentators have suggested that this requirement is insufficient to ‘level the playing field’ where one party has limited knowledge of court procedures and formalities.^[121]

114       Studies also suggest that self-represented litigants are disadvantaged by their lack of familiarity with legal language. By comparison with lawyers, who are trained in thinking and expressing themselves in argumentation based on legal principles, these studies indicate that litigants who self-represent tend to describe their feelings, and to rely on a ‘narrative mode similar to everyday storytelling’.^[122] This research also suggests that self-represented litigants often have difficulty challenging witnesses.^[123]

115       Another barrier affecting self-represented parties in parenting matters is the complexity of the legislation.^[124] This issue is discussed further below in the section, ‘Legal principles in relation to parenting and property’.

116       Self-represented parties may also impede access to justice for the other party to a matter. For parties who have experienced family violence, fear of being cross-examined by the person who has perpetrated the abuse may lead them to avoid the court and consent to arrangements that do not provide the security they need.^[125] This issue is discussed further in the section, ‘Misuse of process’.

117       Early consultations for this Inquiry revealed a number of suggestions for reform to address these issues, including:

• developing specialist clinics within the courts or legal aid commissions to provide pro bono training and advice for parties who self-represent, along the lines of Canada’s National Self-Represented Litigants Project;^[126]
• re-drafting court forms and instructions in plain English and re-developing court websites to ensure they are user-friendly and that forms are easily searchable; and
• simplifying the legislative framework and drafting provisions in plain English.

118       In addition to these suggestions, recent reports have explored the possibility of changes to court procedures to incorporate more inquisitorial features.^[127] This includes a recommendation by the Family Law Council to pilot a Counsel Assisting model to assist judicial officers in matters where a party is not legally represented.^[128] This issue is described further in the section, ‘Resolution and adjudication processes’.

The court environment

119       Recent research has suggested that the court environment is an integral part of facilitating access to justice in the family law area.^[129] In initial consultations, stakeholders voiced a number of concerns about the safety and accessibility of court precincts for client families. These included concerns about:

• insufficient availability of safe rooms;
• safety risks that are created where there is only one entrance to the court;
• a lack of security outside the court to respond to safety risks as clients leave the court;
• a lack of child-friendly spaces at court; and
• insufficient rooms available to facilitate the participation of parties who are experiencing or have experienced violence in the proceedings from a separate room.

120       Similar concerns were voiced in submissions to the Royal Commission into Family Violence, with the Commission reporting that one of the most prominent themes in the submissions it received was concern about the safety and wellbeing of court attendees.^[130] In considering the safety and accessibility of the Magistrates’ Court of Victoria, the Royal Commission recommended:

• safe waiting areas and rooms for co-located service providers;
• accessibility for people with disability;
• proper security staffing and equipment;
• separate entry and exit points for applicants and respondents;
• private interview rooms for use by registrars and service providers;
• remote witness facilities to allow witnesses to give evidence off site and from court-based interview rooms;
• adequate facilities for children and ‘child-friendly’ courts;
• multi-lingual and multi-format signage; and
• use of pre-existing local facilities and structures to accommodate proceedings or associated aspects of court business (for example, for use as safe waiting rooms).^[131]

121       The Neighbourhood Justice Centre in Victoria has been identified as a positive example of a client-friendly, accessible and safe court building. The Neighbourhood Justice Centre provides ‘breakout spaces’ where people can sit outside of the court but still hear when their matters are called, changing the ‘tone’ of court and reducing client anxiety and agitation. There is also a children’s play room on the ground floor.

122       The ALRC heard support for the roaming or ‘dynamic security’ system used at the Neighbourhood Justice Centre. This system replaces the usual ‘airport-style’ security at the court entrance with roaming security guards, who talk and interact with everyone who comes into the building.^[132] This system is reported to defuse tension and create a more client-friendly atmosphere and has been successful in ensuring client and staff safety to date.

123       The ALRC would like to hear from stakeholders about what improvements could be made to improve court environments for family law clients.

124       The Family Law Act governs how decisions in family disputes over parenting and property matters will be made. In this section, the ALRC asks what changes might be made to the legislative provisions governing decisions about children’s care arrangements and the court’s welfare jurisdiction. It also asks whether and how the law in relation to parenting might be reformed to ensure a consistent approach to decision making about children’s care needs regardless of the structure of their family or how it was formed. The ALRC also asks about the need for changes to be made to the law governing property division, spousal maintenance and binding financial agreements.

Parenting

Parenting orders

125       Early consultations for this Inquiry revealed a number of concerns about Part VII of the Family Law Act (Part VII). Among other things, Part VII vests relevant courts with the power to make ‘parenting orders’ about the care of children. These may include orders about:

• who a child lives with;
• the time a child is to spend with another person or persons;
• the allocation of parental responsibility for a child;
• the communication a child is to have with another person or persons;
• the maintenance of a child, in limited circumstances;
• how disputes about the operation of the order may be resolved; and
• any aspect of the care, welfare or development of a child or any other aspect of parental responsibility for a child.

126       Part VII also contains a framework that governs decision making about these issues by the courts. This framework, introduced in 2006, provides that the best interests of the child must be the court’s ‘paramount consideration’ when deciding what orders to make. It also sets out a list of factors the courts must take into account when determining the child’s best interests. This list identifies two matters—the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm from being subjected to, or exposed to, abuse, neglect or family violence—as primary considerations. As a result of amendments to the Act in 2012, the courts are required to give greater weight to the second of the primary factors, the need to protect children from harm.

127       Additional factors that the courts must consider include:

• any views expressed by the child;
• the capacity of each parent to provide for the child’s needs;
• the attitude to the responsibilities of parenthood demonstrated by each parent;
• any family violence involving the child or a member of the child’s family; and
• the right of Aboriginal or Torres Strait Islander children to enjoy their culture.

128       The decision-making framework in Part VII also includes a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for their care. This presumption does not apply in cases of family violence or child abuse, and it can be rebutted by evidence that it is not in the best interests of the particular child in the circumstances. If the court does make an order for equal shared parental responsibility, it is then required to consider whether an equal care-time arrangement is in the child’s best interests and reasonably practicable.

129       In the 2006 case of Goode & Goode,^[133] the Full Court of the Family Court held that this framework provides the courts with a multi-step decision-making pathway to follow. According to this pathway, a judicial officer should:

• consider each of the relevant matters in the best interests checklist and make findings about them if possible;
• decide whether the presumption of equal shared parental responsibility applies or is rebutted;
• if the presumption applies and is not rebutted, consider whether making an order that the child spend equal time with the parents is in the child’s best interests;
• if equal time is found not to be in the child’s best interests, consider making an order that the child spend substantial and significant time with each parent; and
• if neither equal time nor substantial and significant time is considered to be in the child’s best interests, make such orders as the court decides are in the best interests of the child.

130       Academic scholarship and preliminary consultations for this Inquiry indicate that this framework has been the subject of considerable critique. This has included concerns about:

• the effectiveness of the legislation in addressing safety concerns for children arising from family violence and child abuse;
• the complexity and repetition within the decision-making framework, and associated cost issues for clients and productivity issues for the courts;^[134]
• the confusion created by the presumption of equal shared parental responsibility, which many in the community have misunderstood as a requirement that children should spend equal amounts of time with each parent;
• the scope for escalation of conflict associated with the requirement that parents must jointly make decisions;^[135] and
• the lack of respect and weight given to the views of the child in parenting proceedings.^[136]

Family violence and parenting orders

131       The definition of family violence in the Family Law Act is integral to the application of the provisions designed to protect children from harm. The relevant section, introduced in 2012, defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful’.^[137] The section also provides a non-exhaustive list of examples of behaviour that may constitute family violence, including:

• assault;
• sexual assault or other sexually abusive behaviour;
• stalking;
• repeated derogatory taunts;
• intentionally damaging or destroying property;
• intentionally causing death or injury to an animal;
• financial abuse;
• social isolation from friends, family or culture; and
• deprivation of liberty.

132       Some concerns have been expressed that this definition:

• may not adequately reflect the experiences of violence in Aboriginal and Torres Strait Islander communities;^[138]
• does not include misuse of process as a form of abuse;
• does not mention psychological abuse; and
• is not consistent with state and territory family violence legislation, whose definitions do not include a requirement of coercive and controlling behaviour.^[139]

133       Recent reports and early consultations for this Inquiry suggested a number of potential reforms to the decision-making framework in Part VII and to the Act’s definition of family violence. These include proposals to:

• include abuse of process as an example in the definition of family violence;^[140]
• remove the presumption of equal shared parental responsibility^[141] and the language of equal shared time from Part VII;^[142]
• amend the best interests of the child checklist to more clearly prioritise the protection of children from physical or psychological harm;^[143]
• provide a simplified decision-making framework for determining interim parenting matters;
• provide a separate dedicated pathway for decision making in cases involving family violence; and
• enact requirements that a risk assessment for family violence be undertaken upon a matter being filed and at each hearing or court event and that findings of fact be made about allegations of family violence as soon as practicable after proceedings are filed.^[144]

The welfare jurisdiction

134       Concerns have also been raised about the Family Law Act’s welfare jurisdiction, which gives the family courts a broad power to make orders relating to the welfare of children.^[145] This supervisory jurisdiction of the court is used to support a range of orders arising outside the context of a dispute between parents, although the scope of the court’s power under s 67ZC is uncertain.^[146] Recent reports and early consultations have revealed concerns about how the welfare jurisdiction operates in relation to people with disability (in particular in relation to the sterilisation of young women), and in relation to intersex children.

135       The sterilisation of a young person, including one with an intellectual disability, must usually be authorised by the Family Court pursuant to the exercise of its welfare jurisdiction.^[147] Scholarly critiques have suggested that, in these matters, the Court has tended to focus on the person’s disability, including assumptions about their lack of capacity, instead of looking at their social context and capabilities.^[148] Organisations such as Women with Disabilities Australia and the Australian Human Rights Commission have argued that forced sterilisation is a serious violation of human rights, and have called for a prohibition of the involuntary or coerced sterilisation of girls unless there is a serious threat to life.^[149] However, the Family Court has noted that it is increasingly rare for such applications to be brought.^[150] In 2013, the Senate Standing Committee on Community Affairs recommended the development of uniform model legislation to regulate the sterilisation of people with disability.^[151]

136       In relation to intersex children, concerns have been raised about the ability of intersex children to participate in decision making about their gender identity and the extent to which court scrutiny on decisions in relation to medical treatment is required to uphold human rights standards. In Re: Carla,^[152] the court held that its prior consent to the removal of gonads in a five year old child who was raised as a girl having been born with ‘the external appearance of a girl, but with male gonads not contained within a scrotum’ was not required.^[153] This approach has been criticised by human rights advocates, on the basis that significant risks can ensue from the treatment, including infertility and loss of sexual sensation.^[154] Intersex people have reported that it is common for medical procedures to be carried out on infants or young children, without their consent.^[155] Responding to concerns from intersex organisations, the Senate Community Affairs Reference Committee in 2013 recommended that all proposed intersex medical interventions for children and adults without the capacity to consent should require authorisation from a civil and administrative tribunal or the Family Court.^[156]

137       The ALRC also notes the recent appeal decision in Re Kelvin^[157] in which the requirement for family court approval was overturned for stage two of medical treatment where the young person was considered to be Gillick^[158]competent (of sufficient maturity to give informed consent) and their parents and treating medical practitioners agreed with the course of action.

138       The ALRC invites comment on whether changes should be made to Part VII, the definition of family violence, or any other provisions of the Family Law Act to produce best outcomes for children and better support decision making in relation to the safety of children and their families.

139       The ALRC is also interested in receiving feedback about other sections of the Family Law Act and Rules that affect arrangements for children, including:

• section 68LA, which defines the nature of the role of the Independent Children’s Lawyer;
• the principles in Division 12A for conducting child-related proceedings;
• the provisions of Division 13A which govern the courts’ powers in relation to non-compliance with orders that affect children; and
• the rules governing the making of consent orders.

Arrangements for children and family diversity

140       As noted above in the section, ‘Objectives and principles’, a significant number of Australian families with children do not fit the traditional heterosexual nuclear family model. Since the passage of the Family Law Act, Australia has seen increasing numbers of stepfamilies, blended families, sole-parent families and same-sex families, as well as growing numbers of kinship-care arrangements.

141       Families in Australia also reflect a considerable diversity of cultural practices in relation to the care and raising of children, including among Aboriginal and Torres Strait Islander peoples and culturally and linguistically diverse communities. In many cases these practices incorporate approaches to family structure that are distinct from those of nuclear families.^[159] For example, it is not uncommon for Aboriginal children to have multiple caregivers drawn from their wider kinship networks,^[160] while many families in Australia’s new and emerging communities take a collectivist approach to child rearing.

142       In addition to this diversity, recent years have seen a growing use of assisted conception processes and surrogacy arrangements by Australian families, increasing the number of potential parents a child may have, including a mix of genetic, gestational, social and intending parents. Together, these developments suggest that for a significant number of Australian children, their family will include carers who are not their biological or legal parents.

143       Reflecting on this context, a number of stakeholders and reports have suggested that many of the provisions of Part VII, which are limited in their application to the child’s biological or adoptive parents, should be amended to better reflect the diversity of families in which children are cared for, and to better support decision making by the courts in cases where children are living in non-traditional families.

144       The ALRC seeks comment on whether Part VII of the Family Law Act should be amended to better reflect the diversity of families in Australia and support a consistent decision-making approach for all children regardless of their family structure.

Property adjustment

145       The Family Law Act provides the family courts with broad powers to adjust property interests and make orders for spousal maintenance between current or former married couples, and between former partners from unmarried relationships. The provisions relating to married and unmarried couples are very similar but are not identical.

146       The Act provides two key powers to judicial officers in relation to parties to a current or former marriage and parties to a former ‘de facto’ relationship: a power to declare the title or rights that a party has in respect of property,^[161] and a power to alter the interests of the parties in property.^[162] Orders may be made that affect third parties in certain circumstances.^[163] ‘Property’ is interpreted broadly to include all the property of the parties, and to include both legal and equitable interests, and tangible as well as intangible property such as shares or debts.^[164] The Act also provides detailed provisions allowing for the division of superannuation interests.^[165]

147       The power to alter property interests is broadly framed as a power to ‘make such order as [the court] considers appropriate’.^[166] However, this power may only be exercised where the court is satisfied ‘that, in all the circumstances, it is just and equitable to make the order’.^[167] The court’s discretion must also be exercised in accordance with legal principles, including those in the Act itself.^[168]

148       In considering an application to alter property interests, the court must:

• identify the existing legal and equitable interests of the parties in the property;
• consider whether it would be just and equitable to make an order altering those interests; and
• if it is just and equitable to do so, consider what orders should be made, taking into account the factors listed in s 79(4), which incorporate the ‘future needs’ factors set out in s 75(2).

149       The law in a number of overseas family law systems takes a less discretionary approach to this issue. For example, the legislation in some countries employs default rules, such as a presumption of equal sharing (for example, New Zealand),^[169] or uses a ‘community of property’ approach, where property acquired during the relationship is presumed to be jointly owned, but property acquired before or after the relationship belongs solely to the person who acquired it.^[170]

150       A survey of separating parents conducted by the AIFS indicates that key factors affecting the division of their property were the extent of the assets, liabilities, and financial resources of the parties, who initiated the separation and who left the family home, family violence, and care-time arrangements for children.^[171] The research found that a majority (62%) of respondents thought that their property arrangement was fair.^[172]

151       However, this research suggests that for those affected by family violence or other risk factors, there is a greater likelihood of an outcome in which the person who has experienced violence will not achieve a fair outcome and may suffer long-term financial disadvantage.^[173]

152       A number of suggestions have been made for changes to the Family Law Act’s property regime. These have included:

• proposed changes to the provisions guiding how property should be split including:
• adoption of a community of property regime;^[174] and
• a presumption of equal contributions,^[175] or other presumptions about how property should be split, such as a presumption of equal sharing;^[176]
• codification of the Full Court of the Family Court’s decision in Kennon & Kennon,^[177] or otherwise providing clearer guidance about how family violence will be taken into account in property matters;^[178]
• amendments to allow greater use of court orders for the split or transfer of unsecured joint debt and liabilities;^[179]
• suggestions that the requirement to regard the best interests of the child as the paramount consideration should also apply to adjustment of property;^[180]
• suggestions that the Act’s complex superannuation splitting provisions be simplified;^[181] and
• suggestions that the property provisions for married and unmarried couples be merged and any remaining inconsistencies resolved.

153       The ALRC invites comment on whether these or any other changes should be made to the provisions in the Family Law Act governing property division.

Spousal maintenance

154       The Family Law Act vests the family courts with power to order a party to a marriage or a ‘de facto’ relationship to pay spousal maintenance to the other party if that person is unable to support him or herself due to caring responsibilities for a child of the marriage, disability, or ‘any other adequate reason’.^[182] The court can make ‘such order as it considers proper’ for the provision of maintenance,^[183] having regard to the person’s capacity to pay.

155       The Act provides a list of 19 matters that may be taken account in determining what order to make, including the age and health of the parties, their income, property, financial resources and capacity for employment, and whether a party has the care and control of a child of the relationship who is under the age of 18. Orders for maintenance can either provide for lump sum maintenance, or for periodic payments.^[184]

156       There is limited data available on the incidence of maintenance orders. However, surveys of court judgments have indicated that orders for maintenance are rare and are generally limited to cases involving high income families and made on an interim basis or for a limited period of time.^[185]

157       Research suggests that this profile is in line with community attitudes in Australia, with one 1999 study indicating very limited community support for the payment of private spousal support after separation.^[186]

158       However, a number of the early consultations for this Inquiry and submissions to the SPLA Inquiry have suggested that there should be greater consideration of spousal maintenance orders in cases involving family violence. These include a suggestion that family violence be included as a relevant factor in determining needs for the purposes of spousal maintenance applications.^[187] Some stakeholders also proposed the development of a system of administrative determination of maintenance claims, in a similar fashion to child support.

159       The ALRC is interested in comment about whether changes are needed to the spousal maintenance provisions, particularly in relation to people who have experienced family violence.

Binding financial agreements

160       The Family Law Act provides for both married couples and unmarried cohabiting couples to settle their financial affairs by way of a binding financial agreement (BFA). A BFA may be entered into before, during or after a relationship,^[188] and may set out how part or all of the parties’ property or financial resources, and maintenance, should be dealt with in the event that the marriage or relationship ends.^[189]

161       Assuming a BFA is validly made, its effect is to ‘oust’ the jurisdiction of the family courts to make orders adjusting the parties’ property in accordance with the provisions of the Family Law Act.^[190] Because of this effect, the Act provides a number of safeguards to protect parties who enter into a BFA. These include:

• strict requirements for entry into the agreement, including a requirement that each party sign the agreement, receive independent legal advice about the effect of the agreement on their rights, and the advantages and disadvantages of entering into it, receive a statement stating that this advice has been received, and provide that statement to the other party;^[191] and
• provisions allowing the courts to set aside a BFA on certain grounds such as where a party’s agreement was obtained by fraud or there has been a material change of circumstances since the agreement was made.^[192]

162       Over the years, the courts have overturned a number of agreements because of failure to meet the Family Law Act’s entry requirements, or previous versions of them.^[193] In response to this, two sets of amendments^[194] have been enacted to strengthen the enforceability of BFAs, including by:

• reducing the number of matters about which parties must receive legal advice; and
• providing the courts with some flexibility to uphold an agreement where certain requirements were not met but it would be ‘unjust and inequitable’ if the agreement were not binding.^[195]

163       Despite these changes, members of the legal profession have expressed concerns about their exposure to professional negligence liability resulting from the continuing uncertainty about the advice they are required to give clients.^[196] Other issues that have been raised during consultations include concerns about:

• the use of BFAs to the disadvantage of the member of the couple in the weaker bargaining position;
• the extent to which the provisions governing BFAs sit comfortably with a discretionary approach to property adjustment;
• whether and how family violence should be taken into account where a couple has entered into a financial agreement, including family violence that commenced after the financial agreement was finalised;^[197] and
• the effect of the recent High Court decision in Thorne v Kennedy,^[198] which set aside an agreement on the basis of unconscionable conduct, on enforceability of agreements.

164       The ALRC is interested in comment on whether any further changes are needed to the provisions governing BFAs.