ALRC Family Law Report: A quick guide for practitioners
With 60 recommendations made over 574 pages, the Australian Law Reform Commission (ALRC) report, Family Law for the Future: An Inquiry into the Family Law System is a long read. The much-anticipated report was tabled in Parliament on 10 April 2019.
To help you find the parts of the report that will matter most to you as a family lawyer or barrister, we spoke to Professor Richard Chisholm AM, former Judge of the Family Court of Australia and author of the LexisNexis loose-leaf service Australian Family Law.
Key areas of interest for family law practitioners
All of the recommendations in the report are surrounded by the uncertainty of the upcoming federal election. There are, of course, question marks over the next government’s views on the issues raised and its commitment to the expenditure required to implement the recommendations.
However, there are recommendations – both controversial and uncontroversial – that could be implemented in the shorter term and if implemented would impact how you work with clients, navigate the court system and deal with opposing legal practitioners.
Children’s matters (recommendations 4-10)
Among the most significant recommendations here, are that the factors to be taken into account in determining which arrangements are most likely to promote a child’s best interests be simplified, and the presumption of equal shared parental responsibility be removed.
These recommendations are intended to simplify the law and assist parties and their lawyers, and the courts, to focus more clearly on the child’s best interests. However, any such reforms are likely to be resisted by groups advocating a presumption the children should spend equal time with both parents. Selling the reforms to the community might prove more difficult than selling them to the legal profession (who understand the difficulties that the present laws have caused).
Other recommendations, if implemented, would make the children’s provisions more appropriate to Aboriginal and Torres Strait Islander people and ensure proceedings are always conducted in a way that’s suitable for children (whether those proceedings are in the Family Court or Federal Circuit Court).
Simplified property division (recommendations 11-20)
These recommendations largely aim to simplify the provisions around property division and make the process less complex and the outcomes fairer and more predictable. The ALRC also recommends introducing a presumption of equality of contributions (not a presumption of equality of outcomes) during the relationship and a presumption that the value of superannuation assets accumulated during the relationship be split evenly.
Recommendation 19 is perhaps the most controversial of the recommendations relating to property division, suggesting that the statutory tort of violence be created so that domestic violence can be given appropriate weight. This recommendation responds to the well-known difficulty surrounding this topic, currently governed by the decision in Kennon, and the Commission argues that it would make outcomes fairer. No doubt this proposal will be opposed on the ground that it could increase hostile litigation (something that the Commission discusses) and, perhaps, that such a tort would sit awkwardly with the discretionary provisions for determining property allocation.
Amicable resolution (recommendations 21-25)
A requirement for parties to “take genuine steps to resolve their property and financial matters before filing an application for court orders” is suggested by the ALRC, along with the filing of a “genuine steps statement” before a court can hear an application.
Disclosure obligations to assist the resolution of matters are also recommended, and these might well be uncontroversial and candidates for quick implementation.
Arbitration (recommendations 26-28)
It could be time for family lawyers to re-familiarise themselves with the Family Law Act arbitration provisions, with the ALRC recommendations attempting to breathe new life into this avenue for resolving matters.
Case management (recommendations 30-35)
Recommendation 30 responds to many of the ongoing criticisms of the family law system, suggesting the Act be amended to “include an overarching purpose of family law practice and procedure to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families.” Consequences for lawyers and parties who don’t assist in achieving this purpose are suggested in recommendation 31. These recommendations seek to give effect to a long-held aspiration in family law, and may find considerable support.
Costs (recommendation 36)
The implementation of recommendation 36 would significantly change the approach to costs in family law matters. Instead of the general rule that each party bears his or her own costs, the Act would empower the court to award costs, aligning family law with most other jurisdictions. Although the current approach, that parties will normally pay their own costs, has stood since 1976, this recommendation may well find favour as a way of reducing unacceptable uses of litigation.
Evidence (recommendation 37)
The ALRC has recommended that courts be given the power to exclude evidence of “protected confidences”, which would have a clear impact on what you can and can’t give evidence about.
Bigger issues to watch develop over the longer term
Given the sweeping nature of the inquiry, it’s not surprising that some of the recommendations highlight matters that will require substantial debate and, if ever given the green light, complex and far-reaching legislative change.
Having family law administered by state and territory family courts (recommendation 1)
Recommendation 1 is one of the most interesting developments for lawyers, but also – arguably – the most speculative. The recommendation addresses the confusion, duplication, stress and inefficiency stemming from the tangle of different laws and courts involved in family law. It also reflects the increasing intersection between family law matters and family violence and child abuse matters.
The idea is bold, and no other approach has managed to solve the problems that the Commission documents. However, implementing it would require a remarkable effort by state and federal governments, and it remains to be seen whether there is sufficient political energy and community support for it to be put into practice.
A comprehensive redraft of the legislation (recommendation 55)
Most family lawyers will agree that a “comprehensive” redraft of the Family Law Act 1975, as recommended, is long overdue.
While some of the uncontroversial recommendations may be acted upon in the shorter term, a comprehensive redraft of the entire Act will inevitably give rise to public stoushes and political divisions – and may be something that develops over years rather than months. Many would share the Commission’s hope that whatever decisions are made about particular provisions, the resulting legislation will be simpler and easier to understand for both lawyers and non-lawyers.
The timing of the report, so close to the next federal election, adds an element of uncertainty to the fate of the recommendations. At this stage, understandably, we don’t know what approach either party would take. In relation to the family courts themselves, as distinct from the law they apply, the current Attorney-General says the government is “fully committed to a clear path forward of merging the Federal Circuit Court with the Family Court into a single, new and more efficient court” and would develop “individual responses to the complex issues raised in each of the 60 recommendations.”
Read Australian Family Law on Lexis Advance for further analysis and commentary, here.
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1Australian Law Reform Commission Review of the Family Law System – Attorney-General for Australia Media Release