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
Question 1 What should be the role and objectives of the modern 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;
- provide divorcing couples with a ‘one-stop shop’ of legal and counselling services to help them resolve disputes; and
- establish a specialist national court for family law matters with an informal process.
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, 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, 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.
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;
- 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;
- 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.
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.
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
Question 2 What principles should guide any 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.
Commonwealth, Parliamentary Debates, House of Representatives, Family Law Bill, 28 November 1974, 4321–23 (Mr Whitlam) 4323; Commonwealth, Parliamentary Debates, House of Representatives, 9 April 1975, 1375–1377 (Dr JF Cairns) 1375.
Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Report on the Law and Administration of Divorce and Related Matters and the Clauses of the Family Law Bill 1974 (1975) 80; Commonwealth, Parliamentary Debates, House of Representatives, Family Law Bill, 28 November 1974, 4321–23 (Mr Whitlam) 4322.
Kep Enderby, ‘The Family Law Act: Background to the Legislation’ (1975) 1(1) University of New South Wales Law Journal 10.
Convention on the Rights of the Child, opened for signature 20 December 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Rae Kaspiew et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015) 16.
Lixia Qu et al, ‘Post-Separation Parenting, Property and Relationship Dynamics after Five Years’ (Attorney-General’s Department (Cth), 2014) 43, 44, 59–65.
Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, Vol 1, 2014).
Family Law Council, Interim Report to the Attorney-General in Response to the First Two Terms of Reference on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (2015).
House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, A Better Family Law System to Support and Protect Those Affected by Family Violence (2017).
Noel Semple and Nick Bala, ‘Reforming Ontario’s Family Justice System: An Evidence-Based Approach’ (Association of Family and Conciliation Courts, 2013) 4–6.