By Nathanael Coles
As we approach the end of 2017, we review the systemic family law changes that have occurred in 2017 and the changes to come in 2018.
Refer to CCH Books’ Australian Master Family Law Guide and Legislation collection for more insights and information.
Review of the Family Law Act 1975
The family law system will be reviewed as the government questions the effectiveness of an adversarial system in resolving family law disputes with a view to implementing alternatives in order to save money and ease the trauma on children.
On 23 September 2017, Federal Attorney-General George Brandis announced that the review will be run by the Australian Law Reform Commission (ALRC), and will also examine the financial pressure on the Family Court, which is at a crisis point, according to the Law Council of Australia.
Despite profound social changes and changes to the needs of families in Australia over the past 40 years, there has not been a comprehensive review of the Family Law Act 1975 (Cth) (the Act) since its commencement in 1976. The review will take into account the diversity of family structures in contemporary Australia and the importance of ensuring the Act meets the contemporary needs of families and individuals who need to use the family law system.
The review of the family law system will be broad and far reaching, focusing on key areas of importance to Australian families. These include ensuring the family law system prioritises the best interests of children, best addresses family violence and child abuse, and supports families, including those with complex needs to resolve their family law disputes quickly and safely while minimising the financial burden.
On 23 November 2017, the Attorney-General appointed two part-time commissioners to assist the ALRC to conduct the first comprehensive review of the family law system. The review, which is now underway is expected to report to the Government in March 2019. The Honourable John Faulks and Mr Geoffrey Sinclair, individuals with enduring records in family law practice and innovation, will assist the Commissioner, Professor Helen Rhoades, with the project.
The review will also have regard to the best ways to inform decision-makers about the best interests of children, and the views held by children in family disputes, as well as the collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems.
The adversarial court system will be examined as to whether or not it offers the best support to the safety of families and resolving matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes.
Moreover, the review will analyse the rules of procedure, and rules of evidence, that would best support high quality decision‑making in family disputes, mechanisms for reviewing and appealing decisions, families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness. The underlying substantive rules and general legal principles in relation to parenting and property, and the skills, including but not limited to legal, required of professionals in the family law system will be considered.
Depending on the recommendations of the review, there may be a restriction on publication of court proceedings, improving the clarity and accessibility of the law.
The scope of reference of the review will extend to surrogacy, family violence, access to justice, child protection and child support; and interactions between the Commonwealth family law system and other fields, including family law services, the state and territory domestic and family violence, child protection, and child support systems, including the ALRC Family Violence Report 114.
The Attorney-General has requested that the ALRC consider what changes, if any, should be made to the family law system; in particular, by amendments to the Act and other related legislation.
The Attorney-General states that the review will have regard to the jurisdictional intersection of the federal family law system and the state and territory child protection systems, and the desirability of ensuring that children’s matters arising from family separation be dealt with in the same proceedings.
The federal family law courts handle family law disputes, the state’s children’s courts are responsible for child welfare cases and, independently, local magistrates’ courts handle family violence matters.
Federal family law judges have no power to force state child welfare departments to intervene in specific cases if they do not wish to.
The High Court has made it clear under the constitution, federal judges cannot exercise the powers of state judicial officers, although state judges are not prevented from making decisions under commonwealth law. A potential way around this is to give family law judges dual commissions as state judges so they can exercise powers under state laws.
The latest review comes at a time of major during a major overhaul of the family law system. The government has appointed a new Family Court Chief Justice, The Honourable Justice John Pascoe AC CVO, who will have only a year in office before his required retirement.
According to the 2016/17 Annual Report of the Family Court of Australia, the court reports that 8 per cent fewer applications for final orders were finalized in 2016/17 compared with the previous year, and notes that judicial availability has a significant impact. As for interim application, 7.3 per cent fewer were dealt with in 2016/17 than in the previous year.
The court system has become more litigious, the court reporting that the Appeal Division of the court issued 279 judgments in 2016/17 compared with 220 in the previous year.
The 2017, Law Society President Pauline Wright commented on the shortage of judges and stated that visiting judges often have to sit for very long periods and with a dense caseload on a daily basis, and that’s before they even begin to start writing their judgments.
Whether or not the state and federal systems within family law will be changed will not be determined until after the recommendations of the review are outlined in March 2019. Before then, it seems unlikely that the gap between the federal and state systems will disappear. However, a bridge between the two systems might potentially be a viable option depending on the ALRC’s recommendations.
On 7 December 2017, following on from the announcement that the first ever comprehensive review of the family law system will take place, the Attorney-General has introduced two Bills which form part of a suite of initiatives to fundamentally reform the family law system.
The Bills, namely, the Family Law Amendment (Parenting Management Hearings) Bill 2017 and the Family Law Amendment (Family Violence and Other Measures) Bill 2017, aim to ensure that parenting matters are dealt with swiftly and affordably and that more protection is given to vulnerable families.
The Family Law Amendment (Parenting Management Hearings) Bill 2017 proposes that self-represented parties will be able to apply to have their disputes resolved through a Parenting Management Hearing. The hearings will offer parents binding decisions about parenting arrangements quickly, informally and at no cost. Subject to the passage of the legislation, it is anticipated that the pilot will commence in Parramatta in mid-2018 and at another site later that year.
The Family Law Amendment (Family Violence and Other Measures) Bill 2017 strengthens the ability of state and territory courts to handle family law matters when those families are already before them for related family violence or child protection matters and reduces the need for vulnerable families to navigate multiple courts to address their legal needs. The Bill will also give police the authority to charge offenders for breaching a personal protection injunction, instead of victims of family violence having to personally bring a civil application in the Family Court.
House of Representatives passes same-sex marriage Bill
On 7 December 2017, legislation legalising same-sex marriage in Australia has been passed by the House of Representatives by a majority of MPs who were asked to vote with their conscience.
Attorney General, the Hon George Brandis QC, stated:
“This has been a demonstration of Australian democracy at its best. The right to marry in Australia will no longer be determined by sex or gender. Marriage will now be defined in the Marriage Act 1961 as the ‘union of two people to the exclusion of all others, voluntarily entered into for life’. Same-sex couples now have the same rights under the Marriage Act as all other couples. These historic reforms commenced on Saturday 9 December 2017.”
From 9 December 2017, same-sex couples will be able to lodge a Notice of Intended Marriage to commence the one-month minimum notice period required before the solemnisation of marriages under the Marriage Act. Pt VA of the Marriage Act will recognise existing and future same-sex marriages solemnised overseas under the law of a foreign country where the marriage is valid under the foreign law. Same-sex marriages solemnised in Australia before 9 December 2017 by a diplomatic or consular officer under the law of a foreign country will also be recognised.
The Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (the Bill) will commence on the earlier of a day to be fixed by Proclamation, or the day after the end of the 28-day period beginning from the day the legislation receives Royal Assent: cl 2.
The key provisions of the Bill will:
- re-define marriage as “a union of 2 people, to the exclusion of all others, voluntarily entered into for life”
- allow ministers of religion, “religious marriage celebrants” and Australian Defence Force chaplains to refuse to solemnise a marriage in accordance with their religious beliefs
- allow bodies established for religious purposes to refuse to make a facility available, or to provide goods or services in relation to the solemnisation of a marriage, if the refusal “conforms to the doctrines, tenets or beliefs of the religion of the body” or “is necessary to avoid injury to the religious susceptibilities of adherents of that religion”. This is consistent with the existing religious exemption in s 37 of the Sex Discrimination Act 1984 (Cth).
Family law is an area that constantly evolves as cultural and social norms change. We can expect a lot of change in this area of law going into 2018.
Source: Media Release, Senator, the Honourable George Brandis QC, “Part-time Commissioners appointed for review of the Family Law Act”, 23 November 2017
Source: Media Release, Media Release, Senator, the Honourable George Brandis QC, “First comprehensive review of the Family Law Act”, 27 September 2017
Source: Media Release, Attorney-General, Senator the Hon George Brandis QC, Greater relief for distressed families navigating the family law system, 6 December 2017
Source: Attorney General, the Hon George Brandis QC, Media Release: Marriage Equality for Australia, 7 December 2017
Source: Law Society Journal (NSW), Cover Story: “Family Wars”, Issue 40, December 2017