Family Court Reforms – Patience is needed
- October 19, 2018
- Jennifer Hetherington
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Calls for immediate changes to Australia’s Family Court system won’t help the people who need the family court’s services.
Government and legal figures along with lobbyists in the community all seem to be pushing for changes now to the beleaguered and log jammed Family Court system, but tinkering won’t fix it.
We believe everyone should be patient and await the Australian Law Reform Commission review which was commissioned last year.
The Chief Justice of the Family Court says a royal commission into the family law system should be considered if the public isn’t satisfied by proposed government changes and the ALRC review.
We agree with this view.
There’s no question that our Family Court system is not working for many people.
But like building a rock stack requires precision and patience, so does overhauling a system. Some of the changes being suggested are because of past tinkering by governments. This time, it needs to be done properly.
Why use a broken family court system at all?
Our clients are encourage to stay away from the family court. Many people don’t realise only about 3- 5% of cases filed in the Courts are ever decided by a judge. Most people settle out of court while they are waiting up to 3 years for a trial.
The cases we have had go to trial have been really black and white issues that just can’t be negotiated, like a child moving overseas or an argument about whether the parties were in a relationship.
Most of our family law clients instead choose Mediation or Collaborative Law, where you reach agreement out of court. You can take control of your divorce rather than be chewed up by a legal system that is seriously clogged up.
It just doesn’t make a lot of sense to sign up for a 2-3 year family court process knowing you are likely to settle during that period, when you could use Collaborative Law or Mediation and save yourself a lot of time, energy, stress, conflict and money.
The Australian Law Reform Commission Family Law Enquiry
We expect the ALRC review will be in depth and is expected to recommend a raft of changes to family law, but trying to second guess the outcome doesn’t help anyone.
The ALRC review was set in motion by the Turnbull Government in May last year, the first comprehensive review into the family law system since the commencement of the Family Law Act in 1976, with an official policy view to making necessary reforms to ensure the family law system meets the contemporary needs of families and effectively addresses family violence and child abuse.
The timetable involves submissions from stakeholders and a discussion paper with further submissions, which are set to close next month.
The ALRC report is set to be delivered to the Attorney-General at the end of March.
The review is underway while family law clients navigate an often stressful and emotional process involving separation, property and parenting issues.
We need to get it right and not play mix ‘n match games with our Family Court system.
What does the Family Court say?
Reform is high on the agenda for key legal figures with the Chief Justice of the Family Court saying a royal commission into the family law system should be considered if the public isn’t satisfied by proposed government changes and an Australia Law Reform Commission review.
Before his departure as the court’s top judge later this year, Chief Justice John Pascoe had a caution to the Law Council of Australia conference on family law in Brisbane to warn about the planned shake-up of the system.
“In my view, if legislation and the ALRC do not assuage public concern, it must be time to consider a royal commission into family law,” Justice Pascoe said. “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 have seen for the past 40 years — in my opinion, adds to complexity, uncertainty and cost.
“Whatever happens, the focus must be on the best interests of children, including their safety, and the welfare of families. The courts must not be drawn into political controversies; judicial independence and the separation of powers must not be compromised,” he said.
We endorse his views and say moves to merge the Family Court and the Federal Circuit Court should also wait for the ALRC review completion.
This is not about putting things off, it’s about getting family law and the family court right in one go, and not endlessly tinkering with changes.
How to avoid the Family Court
Talk to one of our experienced family law team about reaching agreement without going to the Family Court, check out our Frequently Asked Questions or complete our no-obligation questionnaire for answers to your family law questions.