Family Law Reform Report

The Australian Law Reform Commission recently released its report dated March 2019 into the family law system in Australia (the System) called Family Law for the Future – An Inquiry into the Family Law System (the Report).

The Report is regarded as the first major review of the System since the Family Law Act 1975 commenced.

The Report was prepared in response to the view that there is a growing concern in the community that the System is not working and in need of reform.

I have been practising exclusively in family law for 17 years.  It is apparent that over the course of that period, family law proceedings have increased in cost quite substantially (even taking into account inflation) and family law litigants are now facing the longest delays that I have experienced to date.  In summary clients have to pay higher legal costs and have to wait longer these days, even though we now have more technical capabilities such as the internet and the ability to provide on-line services.

There are of course lower cost options to litigation, such as mediation.  Litigation is to be regarded as an option of last resort only.  Although litigation in the family court is an option of last resort, once commenced, court proceedings should adhere to the maxim that justice delayed is justice denied.  As the delay itself is cause of further costs.  It becomes a vicious circle.

When I explain to clients the potential delay and cost involved if their case does not settle, then I am usually met with some level of shock and disbelief.  This shock is sometimes enough to make the parties balk at commencing proceedings and want to settle.  Other times not, because the parties do not feel that they have an alternative.  This is especially the case when the parties disagree in relation to the ongoing care arrangements of any children.  Years of uncertainty for parents and children cannot be in the best interest of the children.

The act of commissioning the Report itself speaks to the acknowledgement that reform in the System is necessary.  Acknowledgement that there is a concern is the first step.

The increased costs and delays in the System have been widely reported in the media for some time.  However, there has been little impetus to date to tackle the issues and make any changes.  Of course, before any changes are made, a proper review of the System had to be undertaken.  That was a reasonable step.  The Report was the first step in the process of reform of the System.

There were many contributions to the Report from various professions.  The Report is detailed and well considered.  The Report has made many recommendations.  It will now be a matter of waiting to see which of those recommendations, if any, are adopted.  With an election looming, it is perhaps doubtful whether there will be any quick moves to implement the recommendations of the Report.  I can confirm that we are still waiting to be able to split superannuation in relation to de facto partners in Western Australia.  Some things it seems just take time.  It seems that the current system will remain in place for the time being.  It is really a case of watch this space.

The burning questioning is of course, if the recommendations of the Report are adopted will there a be any improvements in the System?  There will be significant disagreement in my personal opinion in response.

From my preliminary review of the Report, I am of the personal opinion that it is unclear to me if there would necessarily follow an improvement of the System if many of the recommendations were adopted, excluding one exception: that the System needs more funding.  As you simply cannot squeeze blood from a stone, no matter how much you polish and shape the stone.

The Report recommended various procedural changes.  The most significant change being the transfer of the responsibility for the System back to each of the States.  In Western Australia, we have always maintained our own State Family Court: Family Court of Western Australia.  The concerns that plague the federal system are present in WA.  It does not necessarily follow therefore that the proposal to transfer the responsibility tothe States of the administration of the System will lead to an improvement of the System.

Below is short list of what are in my personal opinion some of the interesting proposed changes to the laws:

• The parties must file a Genuine Steps Statement to ensure compliance with the pre-action procedures (or PAPs). The PAPs in relation to financial cases have been in place for a significant period of time.  Compliance with the PAPs is mandatory.  Unfortunately, I regularly confront non-compliance with the PAPs, usually by self-represented litigants.  In addition, the courts do not have the resources to argue costs in relation to compliance with the PAPs in each and every case.  In a busy list of cases, it is not reasonable to ask the court to hear significant argument about compliance with the PAPs.  The PAPs have become somewhat of a paper tiger.  It is unclear how implementing a Genuine Steps Statement is going to improve compliance with the PAPs.  The key to increasing compliance with the PAPs is to increase funding to enable the courts to have time to hear argument about compliance with the PAPs.  Also, the court will have to start imposing costs sanctions for non-compliance, which does not appear to me to be the current practice.  It is unclear that this will improve the System.
• Repeal of the provisions requiring the Court to consider equal time or substantial and significant time. The removal of these provisions will probably cause an outcry of some kind from some.  However, in reality if a parent puts forward a proposal of equal time, then the court must consider that proposal or that parent may have an automatic ground of appeal.  Putting the requirement to consider equal time in the legislation was in my opinion probably overkill in the first place.  Either parent can seek equal time.  This will not reduce the number of cases regarding equal time, nor likely reduce the time to prepare a judgement.  It is a technical point.  It is unclear that this will improve the System.
• Add provisions to simplify property division matters. For example, start with a presumption of equality of splitting of assets accumulated during the relationship.  For example, make the date of separation the relevant date.  There are a number of presumptions in the legislation already.  Adding a presumption does not resolve the dispute.  A presumption of equality does not mean that there will be an outcome of equality.  Rather it invites the parties to argue whether or not there should be an equal division of property.  That is essentially what the parties do at present.  This change does not equate to equality of outcome as in some other jurisdictions.  In my opinion there must be more robust debate about with equality of division should be the norm in Australia.  That would simplify matters.  But the insertion of a presumption does not.  Making the date of separation the relevant date, would be reasonable if the trial were held within 6 months of the date.  However, where trials are now being held 2 years or more after separation, this will simply be unreasonable, as many contributions continue after separation such as parenting contributions.  It is unclear that these changes will improve the System.
• Insert a statutory tort of family violence to provide additional remedies in cases of family violence. There is already a claim of torts available in cases of family violence.  In appropriate circumstances, that claim may be joined to family law proceedings.  There are some technical issues with joining the proceedings.  Having a statutory tort would overcome those issues and more readily enable parties to sue each other in relation to family violence.  Family violence is at present very broadly defined.  This would mean that there will be a steady increase in cases in which parties will sue each other in relation to family violence.  This will lead to an increase in litigation.  It is unclear that this will improve the System.

The one recommendation that in my personal opinion would lead to a decrease in waiting times, is to increase funding and to increase the online services available and the number of judges to deal with cases.  This would reduce waiting times in the courts.  The question then is, is there a willingness or ability to divert more funding to improve the System?  If not, then it is unclear that the other recommendations on their own will necessarily lead to an improvement of the System.  Then perhaps there needs to be consideration to a more wholesale reform of the System.

You can access a full copy of the Report here.  A summary the Report is available here, and a recommendation brochure was also provided and can be accessed here.