296 In this section, the ALRC considers how public understanding and confidence in the family law system can be improved. To that end, it asks what reform might be needed to improve the transparency of court processes. The ALRC also asks what changes could be made to governance and regulatory processes to improve public confidence in the family law system.
Transparency and privacy
Question 45 Should s 121 of the Family Law Act be amended to allow parties to family law proceedings to publish information about their experiences of the proceedings? If so, what safeguards should be included to protect the privacy of families and children?
Question 46 What other changes should be made to enhance the transparency of the family law system?
297 Early consultations for this Inquiry revealed stakeholder concerns about the operation of the privacy provisions of the Act. Section 121 of the Family Law Act makes it a criminal offence to publish or otherwise disseminate to the public an account of any family law proceedings that identifies a party or witness to the proceedings without the permission of the court. The prohibition is subject to a number of exceptions, including communications with child welfare authorities, legal aid bodies, legal professional regulators, and where the court authorises publication.
298 The enactment of s 121 in the 1970s was driven by a desire to eliminate the indignities associated with the former fault-based divorce regime, where the names of co-respondents to adultery petitions were often reported in the tabloid press. The aim in enacting this provision was to protect the privacy of parties and their children. However, this protection is qualified by the principle of ‘open justice’, which is fundamental to ensuring that courts remain transparent and accountable for their decisions. Section 121 was designed to balance these principles (of privacy versus open justice) by allowing reporting of family law proceedings provided that the parties cannot be identified. In accordance with this requirement, for example, the Family Court publishes judgments in children’s matters in an anonymised format. This allows scrutiny of judicial decision making without compromising the privacy of parties.
299 In recent years, however, a number of stakeholders have raised concerns about the balance struck in s 121, arguing that it does not provide adequate scope for individuals who use the family courts to share their experiences publicly. For example, in its submission to the ALRC Freedoms Inquiry, the National Association of Community Legal Centres suggested that s 121 prevents ‘victims and survivors of violence from speaking openly of their experiences of the family law system’.
300 On the other hand, others have cautioned that the existing restrictions on the publication of court proceedings provide an important safeguard for protecting the privacy of families and children, and should be maintained, particularly for parenting matters.
301 Recent evidence to parliamentary inquiries suggests that s 121 has also created uncertainty about the information that regulators of professional bodies, such as bodies that govern the practices of psychologists and social workers, may access for the purposes of investigating alleged misconduct by their members. Although a dedicated exemption is provided to allow legal professional regulators to investigate the conduct of lawyers, this is not the case for other professions. The Australian Psychological Society’s Family Law and Psychology Interest Group considers that production of family law files and reports to regulators would be constrained by s 121. Similarly, the Australian Association of Social Workers considers that it cannot investigate complaints against its members relating to family law proceedings due to the requirements of s 121. Women’s Legal Services Australia has suggested that the Family Law Act be amended to provide an exception for disclosures under the Health Practitioner Regulation National Law.
302 Initial consultations revealed a number of proposals for responding to these issues, including:
- relaxation of the s 121 prohibition in relation to proceedings that do not involve children (while maintaining the prohibition on publication of proceedings that would identify a child);
- enactment of a ‘whistle-blower’ exception to s 121, to allow press reporting on matters of genuine public interest; and
- providing exceptions to s 121 to clarify that information may be shared with professional regulators to facilitate their investigatory functions.
303 The ALRC invites comment on whether changes are needed to make the operation of the family law system more transparent, including changes to s 121 of the Family Law Act, and how the privacy of client families and children should be protected.
Accountability and governance
Question 47 What changes should be made to the family law system’s governance and regulatory processes to improve public confidence in the family law system?
304 As other recent inquires have highlighted, a critical focus for instilling public confidence in an organisation or system is the nature of its governance practices. This includes questions about institutional leadership, complaints handling mechanisms, regulatory measures, arrangements for monitoring and review of services and practices, and capacity building and cultural change processes. Preliminary consultations for this Inquiry, as well as recent reviews, have revealed significant concerns about these issues in relation to the family law system.
305 One issue that was raised in early consultations centres the current complaints processes of the family courts. Consistent with the independence of the courts, decisions of a judicial officer may be overturned only through the appeal process. An appeal against the decision of the court often involves considerable expense and will focus (largely) on questions of law. Where a person wishes to lodge a complaint about the conduct of a Commonwealth judicial officer, this is dealt with by the Chief Justice or Chief Judge of the relevant court.
306 This process contrasts with those established in other Australian jurisdictions, where independent judicial commissions have been created to investigate complaints about the conduct of state judicial officers. In New South Wales, for example, the Judicial Officers Act 1986 (NSW) provides a process for people to seek an independent investigation of complaints about the ability or behaviour of state judicial officers (but not their decisions). Investigations are conducted by the Judicial Commission of NSW, which has power to ‘initiate such investigations into the subject-matter of the complaint as it thinks appropriate’. A similar independent Judicial Commission process exists in Victoria, with power to examine complaints about the conduct or capacity of state judicial officers, including complaints about inappropriate remarks from the bench.
307 A number of stakeholders also suggested the need for more sensitive handling of complaints made by people who have used the system’s services, with some recounting negative experiences of engaging with existing complaints mechanisms. The recent report of the Royal Commission into Institutional Responses to Child Sexual Abusehighlights the importance of organisational responses to complaints about negative experiences of services, noting that these ‘have the potential to either significantly compound or help alleviate’ the impact of the person’s experience.
308 As described above in the section, ‘Resolution and adjudication processes’, many of the family law system’s clients have experienced family violence or abuse, and research indicates that engagement with the legal system, and particularly adversarial processes, can exacerbate trauma. Sensitive and well-managed complaints procedures, on the other hand, can in some cases improve mental health outcomes for people who have experienced violence.
309 As noted above in the section, ‘Professional skills and wellbeing’, recent reviews have also revealed consumer concerns about the quality of some professional services within the family law system, particularly with respect to practitioners’ knowledge of family violence. In response, recent reports have suggested the need for strengthened regulatory mechanisms and/or accreditation requirements. For example, the SPLA Committee received a number of submissions raising concerns about the family violence and child sexual abuse competency of family report writers.
310 Family consultants who are employed by the courts have their performance and conduct directly managed by the court, which advises that ‘the appropriate venue’ for addressing concerns about the methodology and content of family reports is cross-examination in court. Complaints that cannot be addressed in cross-examination can be directed to a Regional Dispute Resolution Coordinator or senior Family Consultant.
311 Family consultants and external report writers are often members of regulated professions, and as such may be subject to professional and ethical standards and regulation by their professional associations. However, initial consultations suggest that these associations may be reluctant to investigate professional conduct in the context of family law matters, for fear of breaching privacy provisions or interfering with active court proceedings. The SPLA Committee recommended the development of a formal complaints mechanism for family consultants.
312 Preliminary consultations also revealed concerns about the lack of a system-wide governance structure for the family law system. In particular, stakeholders suggested there should be a single governance body that can provide leadership in shaping the development of the system, with responsibility for monitoring performance, ensuring there are transparent and accessible complaints mechanisms, promoting ethical practices, and fostering learning and innovation, including the development of new methods of service delivery to meet evolving client needs.
313 Early consultations indicated a range of views about how the governance of the family law system might be strengthened to improve public confidence. These included the following proposals:
- The creation of an overarching governance body which performs regulatory functions for the family law system, including supervising the administration of the system, investigating and taking action on complaints, and making recommendations to government about how to improve the system.
- The redevelopment of the Family Law Council to vest it with responsibility for taking a more active role in shaping the system along the lines of the role performed by the Independent Advisory Council (IAC) under the National Disability Insurance Scheme Act 2013 (Cth), which provides the NDIS Board with advice about how the National Disability Insurance Agency should perform its functions.
- Strengthening institutional leadership within the system to encourage cross-sector collaboration, promote habits of ethical practice, internally monitor and review performance, and translate the findings of review processes into improved service design.
- The introduction of a death review process, similar to those used by state and territory child protection systems and coronial processes, to make recommendations for change.
- The creation of a Commonwealth Judicial Commission to conduct independent investigations of complaints of judicial misconduct.
314 The ALRC invites comment on how governance arrangements and professional regulation in the family law system could be improved.
Family Law Act 1975 (Cth) s 121. The courts also have power to make a suppression order or a non-publication order in certain circumstances: see Family Law Act 1975 (Cth) s 102PE.
See the Hon John Fogarty, ‘Establishment of the Family Court of Australia and its Early Years’ (2001) 60 Family Matters 90, 97.
See, eg, Family Law Act 1975 (Cth) s 97(1).
See Family Court of Australia, Finding Out About Judgments <www.familycourt.gov.au/wps/wcm/ connect/fcoaweb/judgments/finding-out-about-judgments>.
National Association of Community Legal Centres, Submission No 143 to Australian Law Reform Commission, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (Interim Report 127) (October 2015) 14.
Australian Psychological Society Family Law and Psychology Interest Group, Submission No 10 to Senate Finance and Public Administration References Committee, Parliament of Australia, Inquiry into the Administration of Health Practitioner Registration by the Australian Health Practitioners Regulation Agency (AHPRA) (11 April 2011).
Australian Association of Social Workers, ‘Complaints Relating to Social Workers and the Family Court of Australia & Federal Circuit Court of Australia’ <www.aasw.asn.au/document/item/3863>.
Women’s Legal Services Australia, Submission No 80 to Senate Standing Committee on Community Affairs, Parliament of Australia, Inquiry into the Complaints Mechanism Administered under the Health Practitioner Regulation National Law (February 2017).
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 7.
For more information about the complaints procedures currently in place, see: Family Court of Australia, Judicial Complaints Procedure <www.familycourt.gov.au>; Federal Circuit Court of Australia, Judicial Complaints Procedures <www.federalcircuitcourt.gov.au>.
Judicial Officers Act 1986 (NSW) s 23.
Judicial Commission Victoria, Homepage <www.judicialcommission.vic.gov.au>.
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) 172.
Herman, above n 224.
Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017).
See House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, above n 13, ch 8; Family Law Council, Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems—Final Report (2016) rec 11.
House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, above n 13, 207.
Family Court of Australia, Complaints about Family Reports and Family Consultants—Family Court of Australia <www.familycourt.gov.au>; Federal Circuit Court of Australia, Federal Circuit Court of Australia Complaints Policy <www.federalcircuitcourt.gov.au>; House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, above n 13, 275.
For example, the Australian Psychological Society, Australian Psychological Society: Ethics <www.psychology.org.au/about/ethics/>. Psychology Board of Australia, Standards and Guidelines <www.psychologyboard.gov.au/Standards-and-Guidelines.aspx>.
House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, above n 13, rec 30.
Some similar functions are performed by some state and territory Commissioners for Children and Young People: see, eg, the Commission for Children and Young People Act 2012 (Vic).
See on this, Christine Parker, Tahlia Gordon and Steve Mark, ‘Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales’ (2010) 37(3) Journal of Law and Society 466.
Women’s Legal Services Australia, Submission to the Family Law Council, Inquiry into Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (October 2015).
This was recommended in Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Australia’s Judicial System and the Role of Judges (2009).