27 November 2018

The impact of recent changes in family law for Family Dispute Resolution Practitioners

Published on 27 November 2018

Major changes to family law were announced this year, all of which are likely to impact how family law practitioners work with clients, the court system and opposing counsel. Insights reviews and recaps these changes and how they might impact students and graduates of the College of Law’s popular Family Dispute Resolution Practitioner program.

 

Consolidating courts

Anyone who has interacted with the Family Court of Australia will know the system has been experiencing significant delays. Recent reports suggest litigants are waiting up to a year and a half for their cases to be heard and processed.

As a result, Attorney-General Christian Porter announced that the Family Court of Australia and Federal Circuit Court will be consolidated into a single court, the Federal Circuit and Family Court of Australia. Currently, these courts ‘job-share’ cases, but with up to 22,000 cases being filed across both courts each year, this is becoming increasingly difficult.

 “We have two parallel courts, different rules, forms, and procedures. Individuals who are in the system get bounced around like Family Law footballs from one court to another – terrible outcomes for them”, said Attorney-General Christian Porter to ABC AM.

 

Report from Australian Law Reform Commission due in 2019

In May 2017, the Turnbull Government directed the Australian Law Reform Commission to conduct the first comprehensive review into the family law system since the enactment of the Family Law Act in 1976. Specifically, the review will consider what changes are needed to ensure the family law system effectively addresses family violence and child abuse, in addition to meeting the overall contemporary needs of the Australian community.

A full report from the Australian Law Reform Commission is due in March 2019. It is possible this report will trigger legislative changes to the Family Law Act, which may in turn affect how family law matters are run.

 

Calls for a Royal Commission

A Royal Commission may also be on the cards, if outgoing Chief Justice John Pascoe has anything to do with it. Chief Justice Pascoe recently called for a Royal Commission to address a number of issues facing the courts, including a rise in violence involving children, mental health issues and substance abuse cases before the courts.

“In my view, if legislation and the ALRC report do not assuage public concerns about the family law system, it must surely be time to consider a royal commission into family law,” Justice Pascoe told the ABC.

“This will allow comprehensive public discourse by all stakeholders on all elements of the family law system and the protection of children.

“Continual tinkering with the system, which we’ve seen over the past 40 years, in my opinion adds to the complexity, uncertainty and cost, and often we don’t tackle the really big issues such as the divide between child protection and the family law system.”

 

Impact on Family Dispute Resolution Practitioners

Given the ALRC review, sweeping changes announced to the family court system and calls for a royal commission, it seems quite likely that major changes are coming to family law in Australia.

Common themes include protecting children from violence, lowering costs and delays to expedite what can often be an emotionally fraught time for clients. For Family Dispute Resolution Practitioners, the ALRC report provides an opportunity to comment and suggest systemic and legal changes that would make the lives of their clients easier. While the Family Law Act 1976 (Cth) broke major ground when it was enacted, the move towards amicable, out-of-court means of resolving family disputes reflects how much family law practice has already evolved. The reforms to come reflect an opportunity for the family law system and legislation to keep pace with this change.

 

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