The legislation governing the Australian family law system has not been comprehensively reviewed since its commencement in the 1970's. Now an expansive review of the legislation has been commissioned by the Attorney-General and is underway. In this article, we provide an overview of why now, who will benefit and what to expect from the review.
Socially Australia has changed considerably over the past forty years. However, the Family Law Act 1975 (The Act) has not undergone a significant review since it first commenced in 1976.
The Family Law Act has undergone numerous amendments since its commencement and governs matters relating to divorce and nullity of marriage, de facto relationships, maintenance, binding financial matters and children's matters including parental responsibility.
Why is this review of the Family Law Act necessary?
The ideologies behind the Act were progressive at the time of its enactment. For example, the "no fault" system for the dissolution of marriage was one of the most significant changes to the family law landscape to be enacted by the legislation.
"Profound social changes" and "changes to the needs of Australian families" have been cited by the Attorney-General as reasons for commissioning the first comprehensive review of the Act more than four decades since its commencement. The review will be undertaken by the Australian Law Reform Commission (ALRC) and the report will be finalised by 31 March 2019.
The terms of reference to which the ALRC is to have regard in conducting the review are extremely broad. Among other things, the ALRC is to have regard to the greater level of diversity in contemporary Australian family structures, and the importance of ensuring that the needs of modern, every-day individuals and families are being met by the Act.
Who will benefit from this review?
The ALRC will also consider family violence and child abuse, including protection for vulnerable witnesses. The issues posed by family violence have recently been brought to the forefront by the Parliamentary Inquiry into a better family law system to support those affected by family violence.
The submissions received by the Parliamentary Inquiry raised several pertinent issues which are likely to arise during the ALRC review. For instance, some submissions considered the issuing of subpoenas to therapeutic professionals and how this process may discourage victims of family violence from seeking appropriate treatment for fear of their personal records being accessed by the perpetrator.
Numerous submissions also raised the issue of cross-examination in matters where there have been allegations of domestic violence. The current system poses a risk that victims of family violence may be cross-examined by the perpetrator in circumstances where the perpetrator does not have legal representation and may be permitted to cross-examine the victim to allow adequate testing of the victim's evidence. About 23% of matters in the Family Court include an unrepresented party. The submissions made to the Parliamentary Inquiry could prove a valuable resource for the ALRC in conducting the comprehensive review of the Act.
For better or worse, what changes can we expect?
Pleasingly, the importance of encouraging the early resolution of family dispute matters in the most cost-effective and least harmful matter is a further term of reference. Parties to a litigated family law matter may be required to wait up to three years before their matter is determined by a Court. The anxiety and expense associated with this prolonged waiting period can lead to further personal and financial complications for litigants. At Lander & Rogers, our Family & Relationship Law team has long placed an emphasis on mediation and alternative dispute resolution. We are hopeful that the ALRC's report will encourage more family law practitioners to consider these cost-effective manners of dispute resolution prior to issuing Court proceedings in family law matters.
Since its commencement, reviews of the Act have taken place in a piecemeal manner and have not focussed on the overall applicability and effect of the legislation on Australian families. The opportunity to revitalise the Act in order to ensure that it is meeting the needs of everyday Australians is a valuable one. We welcome the comprehensive review of the Act and look forward to practical recommendations from the ALRC in 2019.
If you have questions regarding divorce & divorce settlements, relationship breakdown or parental rights & children's matters, please contact a member of the Family & Relationship Law team for further information.
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