Changes to the Family Law System

In 2017, Federal Attorney-General George Brandis announced that the Australian family law system, which has not been overhauled since the Family Court was established in 1976, would go under a wide-ranging review. The Family Law Act 1975 is commonly criticised as being outdated and impractical, and for having failed to keep up with developments in the way relationships and families operate in today’s Australia.

This is due to a number of concerns about the current system, some of which include the cost of running family law proceedings, the length of time it takes for a matter to be finalised, and how the system deals with victims of family violence and with children. In May 2018, the government announced that the family law system would go through a reform, and that a legislation would be brought forward to amalgamate the Federal Circuit Court and the Family Court into a single jurisdiction. However, the review of the Family Law Act has still to be undertaken.

Okay, So What’s Changing?

The greatest change that we are to see is the establishing of the Federal Circuit and Family Court of Australia (FCFCA), and it will come into effect on 1 January 2019. This means that the Federal Circuit Court and the Family Court, currently operating separately, will be combined into a single court. A Family Law Appeal Division will also be established in the Federal Court of Australia.

Under the new system, all family law matters will have a single entry-point for. This presents a change from the current system: currently, applications can be filed either in the Federal Circuit Court or the Family Court. It is claimed that the FCFCA court will prioritise urgent and high-risk cases; additionally, matters will be appointed to the judge and division with the most relevant expertise. A practical change for the parties in the matters is that they will know what to expect when it comes to costs and length of time likely to be taken for their matter to be finalised.

If the legislation passes, the changes will take effect on 1 January 2019.

Why Do We Have a Family Law Reform?

It is claimed by the Attorney-General’s department that the changes will help to address problems with the current family law system: delays, confusion, inconsistencies, and unnecessary costs. The new court is aimed to be more accessible, efficient and consistent, and it hopes it will be able to allow families to resolve their legal matters more quickly and cheaply.

It currently takes nearly a year and a half – on average – for a matter to reach trial, meaning that children and parents can face with significant changes while the proceedings are on foot. Processes that are this slow then simply mean that children involved in parenting matters must live without certainty about their future care arrangements for significant periods.

Responses to the Changes

Supporters of the changes introduced by the family law reform say resources will be saved by eliminating crossover between two jurisdictions. According to the government, the new system will aim to resolve up to 8,000 more family law matters every year. However, there is the other side of the medal: critics of the family law system are unconvinced that the changes will allay their concerns about its inefficiency or result in better judgments. Some feel that complex situations involving domestic violence, substance abuse and questions of parenting capacity may not be dealt with adequately by a system that is prioritising saving time and money. Questions have also been asked as to why the changes are being implemented at the same time that a comprehensive review of the family law system is underway and prior to recommendations being made. The changes have been announced with little consultation with the legal community or the broader community.

What Is the Goal?

According to the Attorney-General said, the aim of the family law reform and the new FCFCA is to help Australian families resolve their disputes faster – by improving the efficiency of the current split family law system, and advocating for a faster, cheaper and more consistent dispute resolution. The families in need for legal assistance are those who cannot resolve their matters without legal intervention. That’s why it’s necessary that the system does not exacerbate the trauma of family breakup, especially for children.

Family Law Reform and Domestic Violence

There has been a political debate recently about how the system has dealt with problems of family violence. According to different studies, families with complex needs, including violence, are the predominant clients of the family law system.

An organisation called Women’s Legal Services Australia presented a petition on this matter. They called for reform and urged the political leaders to adopt the following plan to prioritise safety in the family law system:

  1. develop a specialist pathway for cases involving family violence;
  2. reduce trauma and support victims. This includes legislative protections that prevent victims from being directly cross-examined by their abuser;
  3. intervene as early as possible, and provide legal help for the most disadvantaged;
  4. help victims on their way to financial recovery; and
  5. insist that all family law professionals strengthen the understanding of family violence.

If you have any questions about the Family Law Reform that is to take place, do not hesitate to ask your representative from Withstand Lawyers.

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