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:
- the objectives of the contemporary family law system and the principles that should guide its work with client families;
- the barriers that affect access to and engagement with the system and how these can be addressed;
- 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;
- whether the system’s processes for resolving and adjudicating disputes are well adapted to meet the needs of separated families;
- the development of integrated services for families with complex needs;
- how best to support the involvement of children in the family law system;
- the competencies and skills required of family law system professionals and ensuring these are maintained; and
- 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.
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.
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’. 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’.
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 Disabilitiesand the Disability Discrimination Act 1992 (Cth).
Gail Winkworth and Morag McAthur, ‘Being “Child Centred” in Child Protection: What Does It Mean?’ (2006) 31(4) Children Australia 13.
Liz Wall, Daryl Higgins and Cathryn Hunter, ‘Trauma-Informed Care in Child/Family Welfare Services’ (CFCA Paper No 37, Child Family Community Australia, 2016).
Mental Health Coordinating Council, Trauma-Informed Care and Practice: Towards a Cultural Shift in Policy Reform across Mental Health and Human Services in Australia (2013) 9.
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008).