On 27 September 2017 Attorney-General George Brandis announced the first review of the Family Law Act 1975 (Cth) (the Act), the first such review since the establishment of the Family Court in 1976.
The review, which commenced on 1 October 2017, is to be undertaken by the Australian Law Reform Commission (ALRC) pursuant to Section 20(1) of the Australian Reform Commission Act 1996 (Cth) and will be conducted by Professor Helen Rhoades of the University of Melbourne. It is scheduled to be completed on or before 31 March 2019.
The Attorney-General’s rationale for ordering the review is partly driven by the “profound social changes and changes to the needs of families in Australia over the past 40 years” as well as the “importance of ensuring the Act meets the contemporary needs of families and individuals who need to have resort to the family law system”.
Accordingly, the ALRC in its review is required to consider whether, and if so what, reforms to the family law system are necessary or desirable, with particular focus to be placed on:
- appropriate, early and cost-effective resolution to all family law disputes;
- the protection of the best interests of children and their safety;
- family law services, including (but not limited to) dispute resolution services;
- family violence and child abuse, including protection for vulnerable witnesses;
- the best ways to inform decision-makers about the best interests of children, and the views held by children in family disputes
- 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;
- whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes;
- 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;
- the skills, including but not limited to legal, required of professionals in the family law system;
- restriction on publication of court proceedings;
- improving the clarity and accessibility of the law; and
- any other matters related to these Terms of Reference.
In conducting its review, the ALRC will have reference to existing reports relevant to the family law system, including reports on surrogacy, family violence, access to justice, child protection and child support. It will also be required to consider the interplay between the family law system and other fields including family law services, family violence, child protection and other child support services in the States and Territories. The ALRC will also produce consultation documents to enable relevant experts, stakeholders and the community to contribute.
Considering the ALRC’s broad mandate it seems likely that its reform recommendations will be systemic in nature and will include procedural and substantive measures intended to reduce the overall cost to the parties and the length of court proceedings with preference given to dispute resolution over litigation. It is also likely that the ALRC will recommend that greater focus is placed on the rights of victims and children, in cases where family violence and child abuse is involved.