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    Family Law for the Future: The ALRC Report

    May 27, 2019 1:59:00 PM

    Last month, the Australian Law Reform Commission (‘ALRC’) released its report, ‘Family Law for the Future – An Inquiry into the Family Law System’ (‘the Report’). The ALRC spent 18 months working on the inquiry, which was headed by the Honourable Justice Sarah Derrington.

    It is the first review of the Australia Family Court system since its establishment in 1976 and, as the Summary Report puts it, its focus is on “finding the best way to resolve disputes at the lowest financial, emotional, and psychological costs, always giving primacy to the interests of any children affected by those disputes”.

    When the inquiry commenced in 2017, it did so with the objective of recommending reform required to ensure that Australia’s family law system meets the needs of contemporary families and adequately protects the rights of children.

    The final report contains 60 recommendations designed to overhaul the current family court system, which the ALRC summarises in the following broad topics:

    • Closing the jurisdictional gap

    One of the major issues highlighted by the Report is children falling through the gaps between the federal family law courts, the state and territory child protection services, and the state and territory responses to family violence. The recommendations centre around stopping children from falling between these gaps, primarily by having family law disputes returned to the states and territories, and eventually abolishing the federal family courts altogether.

    • Children’s orders

    The Report recommends simplifying the factors to be considered when determining living arrangements that promote a child’s best interests and removing mandatory considerations of particular living arrangements.

    • Stricter case management

    A number of recommendations went towards establishing clearer consequences for separating couples and their legal advisers if they don’t seek to resolve disputes as quickly, inexpensively, and efficiently as possible, and with the least acrimony between the parties.

    • Compliance with children’s orders

    The ALRC recommended a number of changes to improve the understanding of Court orders through greater engagement with family consultants and the placing of limits on interim appeals.

    • Simpler property division

    The recommendations also covered the property side of things, namely with a starting position to be enshrined in the law that separated couples made equal contributions during the relationship.

    • Encourage amicable dispute resolution

    Although with the eventual abolition of the federal family courts, the Report also highlighted the importance of alternatives to Court. An important recommendation was to increase the proportion of family law matters that are dealt with through alternatives such as Family Dispute Resolution (FDR) and Legally Assisted Dispute Resolution (LADR).

    • Legislative simplification

    An oft-repeated criticism of the Family Law Act is the way in which it is drafted. It therefore comes as no surprise that the ALRC also recommends the redrafting of the Family Law Act to make it easier for people to understand the law.

    The ALRC hopes that implementation of its recommendations would serve to improve outcomes for families and especially for children during family breakdowns and would greatly increase the efficiency of the family court system. Their principal recommendation of establishing state-and territory-based family law courts would significantly change the way Australian families navigate family breakdowns and disputes both within and beyond the court system.

    The Report is ground-breaking, and its recommendations span the spectrum from straightforward to complex and system-altering. It will no doubt be interesting to watch as the next government considers the recommendations and which to implement.

    Click here to see the Full Report. 

    Click here to see the Summary Report. 

    If you have further questions, please contact Karla Elias at kelias@franklaw.com.au

    This is not legal advice. 

    Karla Elias

    Written by Karla Elias