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Family Law System at a Balance: Simplicity versus Complexity

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Family Law System at a Balance: Simplicity versus Complexity

Australia’s Family Law can be complex and is continually evolving with changes in legislation, Government and recent Court decisions. The family law system may change in 2019, where Federal Parliament is currently deliberating on a Bill that proposes the unification of the Federal Circuit Court and the Family Court into one entity.

 

A review of the Family Law system was also submitted by the Australian Law Reform Commission (‘ALRC’) alongside the said Bill. The review by the ALRC, comprehensively analyses the current Family Court system, both its strengths and deficiencies. The ALRC’s review will play a vital role in the Senate’s decision, to decide if a merger of the Federal Circuit Court and the Family Court are to happen, or if there are any revisions to be made to the current Family Law system.

 

The Queensland Law Society (‘QLS’), has expressed their concerns with the proposed model for a merger of the two Courts. The proposed merger presents various challenges and possibly unintended consequences not considered in making such a change. The proposed “Federal Circuit and Family Court of Australia” (‘FCFC’) would have two divisions - one handling the continuation of the Family Court and the other, the Federal Circuit Court - it would still, in effect, create issues regarding complexity, delays in outcomes and cost-effectiveness. The Bills tend to favour a multi-purpose Family Court veering away from a specialized one, in the hopes of eliminating the risk of divergent decisions made between the two current systems. The proposed merger falls short in accounting for the complex issues of funding, and in accounting for how these changes may impact children or victims of family violence, from the likes of the current system.

 

With some of the above concerns, the QLS is calling for:

 

A.    simplification of the family law system including the creation of a single specialist family court, with a single set of rules and single set of forms

B.    appointment of judicial officers with specialist family law experience, noting that family law is a highly specialised jurisdiction and the proper determination of family law disputes requires considerable expertise

C.    additional funding to the legal assistance sector to improve accessibility to the family law system. Access to legal advice and representation is key to the resolution of matters and helps to ensure litigants are properly informed and understand legal matters

D.    amendments to the Family Law Act 1975 which reflect the diversity of family structures and backgrounds of Australians and promotes the welfare of all children, without reference to their family structure

E.    simplification of Part VII of the Family Law Act 1975, including the ‘legislative pathway’ currently provided

F.    amendments to family law which improve the accessibility of the system for vulnerable and disadvantaged groups including Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse backgrounds and people with disability

G.   national status of children legislation which creates a consistent approach to parentage

H.    maintaining the principle that the child’s best interest is the paramount consideration. Importantly, provisions around parenting should not prioritise or favour any particular parenting arrangement as this gives artificial weight to a particular outcome in contraction to the paramountcy principle

I.      measures which protect vulnerable litigants from systems abuse

J.     improved collaboration and information sharing between the family courts and state and territory child protection and family violence systems

K.    improving children’s experience of court proceedings and ensuring children’s views are heard and understood through the provision of additional funding for appropriate experts including Independent Children’s Lawyers and family consultants

L.    ongoing training of family law professionals, including judicial officers, on relevant matters including

M.   family violence, child development, post-separation family dynamics, diverse family structures and cultural awareness.

 Extracted from the QLS Federal Election - 2019 Call to Parties Statement.

 

Some of the legal industry have taken issue with how quickly the said Bills were introduced, or with the apparent lack of emphasis that was placed on the ALRC review and how the Senate Legal and Constitutional Affairs Legislation Committee released their findings earlier than expected. Despite the merger having its shortcomings, the committee recommended that the Bills be passed much to the dismay of QLS and others within the industry. The QLS has openly supported the creation of a lone specialist Court together with the unification of its rules and procedures, they have found that the Bills and its proposed changes to the Federal Courts' system should not be implemented at the moment. The conclusion reach by some, were that the Government should postpone the passing of the Bill until the Final ALRC report with all its proposals and recommendations have been considered and reviewed before giving their decision.

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