Much is happening in Family Law – in fact, you might easily say it is more exciting than the coming election! The Australian Law Reform Commission has just put out its recommendations for major changes in the family law system, following its long awaited review after 43 years of operation of the Family Court of Australia.
But a great deal is going on in addition to what the ALRC proposes such as:
- The strange left-field proposal by government to merge the Family Court and the Federal Circuit Court has been rejected by the Senate.
- The family law courts have just issued an update of their “Family Violence Plan”. This is a very detailed and helpful blueprint for how the courts are to make sure that cases involving allegations of family violence are handled promptly, sensitively and with focus on risk protection.
- About a dozen new family law judges (both courts) have been appointed since November which is a marvellous way of reducing the delays in the court system and ensuring real help is provided to people when they unfortunately get into the court system.
And the Australian Law Reform Commission has made 60 recommendations for change. The big ones include:
- Creation of state “super courts” to handle both family law and also state based family violence matters (intervention orders) and state based child welfare matters (the children’s court jurisdiction relating to children at risk). Unfortunately, this proposal needs the States and the Commonwealth to cooperate and even if the Commonwealth wanted to push ahead with this there is no way this will happen this calendar year and it could take much longer again.
- The tortuous provisions of the Family Law Act under which the court must consider (usually then rejecting the idea) equal shared time for children in every parenting case are to be repealed, leaving a focus as it should always have been, on what is in the best interests of the child.
- There is an important recommendation to simplify property settlements. At present property issues are totally in the discretion of the court which must take into account in excess of 20 considerations with no guidance as to which ones have more weight than others. The ALRC has picked up a recommendation made by Moores (and echoed by some others) that a court should presume that contributions made by the parties during the marriage or relationship (financial, parenting, homemaking, etc.) should be treated as equal.
This can be adjusted for contributions from other sources like inheritances, and for the parties having different future needs (such as responsibility for young children or a difference in earning capacity). This will remove bickering in family law settlements about the detail of what has gone on during a relationship, at least in relation to property settlement. - They recommend that the date to value assets and superannuation is the date of separation (not the current date of trial) “unless the interests of justice require otherwise”. This suggests that if somebody gets an inheritance after separation it may be disregarded in a settlement – which the law does not permit at present.
- They recommended there be a presumption that the value of superannuation accumulated during a relationship should be split equally between the parties. Again, this means pre-relationship super and post-relationship super may be disregarded. This will certainly simplify arguments about superannuation.
- They recommend greatly simplifying the currently complex operation of superannuation splitting, which will make it much easier for the separating couple.
- They recommend the introduction of a new ground for claiming money; a statutory tort of family violence. One party can include this in their family law claim and get damages from the other party for violence during the relationship. Those damages will then not be taken into account in the family law property settlement which will go ahead in the normal way. This is a major change and while it may increase litigation, in bad violence cases it gives real hope for the injured party to get real compensation.
- They also recommended (as Moores also suggested in submissions to the ALRC) that parties must take “genuine steps” to resolve their financial matters before going to court. This will lead to increased mediation of financial matters in family dispute resolution centres and will force people to seriously negotiate. If not they may be ordered to pay wasted costs of the other party being dragged to court.
- The ALRC would expand the use of arbitration (which you could loosely call rent-a-judge, done privately) to cover all financial matters, and some parenting matters where family violence is not involved. This is a highly desirable option for those who cannot settle without a third party making a decision and it is quicker and cheaper than going through the Court system in the large majority of cases.
- They recommend removing the general rule that each party pay their own legal costs. The detail of this has to be fleshed out. We hope this means that those who unnecessarily or unreasonably escalate legal matters will be ordered to pay costs more often and that misbehaviour in the legal system will reduce accordingly.
There are many other interesting proposals. As mentioned the state super court proposal will not happen soon. We hope that most of the other proposals are legislated for this year. They promise to simplify family law and to reduce litigation which is a good thing.
If you require assistance or advice about any of these matters, please do not hesitate to contact us.