Co-written by: Chelleste Blackburn (Paralegal)
KEY TAKE OUTS:
- A new Bill titled the Family Law (Self-Assessment) Bill 2019, is currently at its second reading in the Senate.
- Couples will now be required to self-assess and narrow their disputes promptly and within a defined statutory time frame.
- The act of throwing money at family law problems does not fix the problems themselves. This is due to the fundamental mismatch between the interests of the law society and the interests of Australian society.
- This Bill does not propose to change the original intent of the policy of the Family Law Act, rather it intends to uphold the original intent of the Parliament.
- The reforms proposed in the Bill are done with the intent of supporting family law clients and creating a more efficient and successful system.
A Bill titled the Family Law (Self-Assessment) Bill 2019 that makes amendments to The Family Law Act 1975 is currently at its second reading in the Senate.
Family law reforms in the past have been highly focused on the delays arising inside family courts. However, until now the delays that occur before the matter reaches court have not been taken into consideration. Sometimes family law matters, particularly property settlements between spouses, can take 2 -10 years to resolve. These delays are caused by a number of factors, including protracted negotiations between belligerent spouses, or delays at the hands of legal representatives. When these delays occur, neither party is at liberty to move on with their lives financially, and are often prevented from acquiring or disposing assets, often with large sums of money held in trust for long periods of time.
In a 2014 report, the Australian Institute of Family Studies found that ordinary Australian voters wait, on average, 15-23 months to settle their relationship property disputes outside court. These delays are most unusual given that Judges were granted with vast discretionary power following the introduction of the Family Law Act in 1975 with the aim of “… sweeping away the laws and procedures of the past and providing a new era of calmness and rationality… which would introduce speedy, less expensive and less formal procedures.” (Attorney-General’s Department press release, 1975).
The Family Law (Self Assessment) Bill 2019 aims to solve these innate delays at low cost through new requirements imposed on separated couples. Parties will now be required to self-assess and narrow their disputes promptly and within a defined statutory time frame. Under the current law, obligations requiring compliance with the Family Law Act 1975 are only enacted once litigation ensues, and in most cases follows months, if not years, of costly negotiations. This bill would ensure compliance with the Family Law Act is no longer optional but a mandatory requirement. This would mean matters cannot be deferred and are no longer dependant on wealth or bargaining power.
This Bill will require the following of separating couples
- Self-assessment of their remaining relationship wealth on an internet portal, with an additional protection for the financially disadvantaged spouse (in 94% of cases, the female), requiring that they are allocated not less than half the value of their relationship property in 60 days;
- Promptly locking in a division of 35% of the net value of the family home for each party. Only to be disregarded when one party can show the court a cause that would require a lower allocation due to ill health or special circumstances;
- Paying up by selling the family home at auction or to one party. In the event of disagreement, locking up residual sums in a joint bank account while they mediate, arbitrate or negotiate the remining real issues or amount in dispute;
- Ensure citizen’s rights to litigate after the event are not affected, however, the economic incentive to litigate following payment reduces in a somewhat linear fashion; and
- Exceptions are only to be made in limited circumstances which commensurate with current legal policy and that are otherwise consistent with utilitarian justice.
Important issues raised in the Bill
The act of throwing money at family law problems does not fix the problems themselves. This is due to the fundamental mismatch between the interests of the legal society and the interests of Australian society. Our society needs low conflict and high certainty. Rather than spending an inordinate amount of money with no deliverables in sight, this Bill proposes creating core obligations.
The economic effect of this Bill will be equivalent to increasing the Federal Circuit Court’s expenditure by 34% and quadrupling the effectiveness of taxpayers money used to assist middle class divorcees. Further to this, this Bill will affect a more significant reduction in family law violence than all other measures enacted or funded by this Parliament.
This Bill does not propose to change the original intent of the policy of the Family Law Act, rather it intends to uphold the original intent of the Parliament by creating a timetable and process allowing for the following:
- A claim to be made online, with a self-assessment system for financial disputes. Solvency will be achieved by a series of minimum compliance rules that strengthen the vision of the Hon Lionel Murphy QC, former Senator, Attorney General and Justice of High Court of Australia, that family law justice be rational, prompt, focused, and simple. To date courts have failed to achieve, and in some instances failed to seek to achieve, these proper purposes; and
- A system requiring parental self-assessment which will enable children to enjoy more support from their non-residential parents. Providing material solutions for families at a time of family dissolution is a core role of a legal system. The current regime provides little certainty and exacerbates much distress. It is incongruent with society’s needs for reduced levels of gender conflict.
These changes will impose no cost to other taxpayers. They move compliance burdens from those who are weak to the powerful and the advisors of the powerful.
The benefits that will arise from these reforms
- This reform is a community-originated initiative. It can be implemented within 90 days and have a strong, positive impact well beyond the formal justice system;
- These reforms will reduce pressure on welfare payments that are currently incurred while assets remain locked up and/or are not allocated promptly;
- Reduce pressure on Legal Aid funded organisations and empower those who work in them to deliver more substantive justice to a wider range of Australians in respect of family law matters;
- Allow reliance on the publicly funded federal mediation services to be reduced. The impact of this will allow publicly funded mediation services to succeed on a more widespread basis;
- Reduce pressure on publicly funded courts which enables them to do what they must, including dealing with complex facts and not rising property prices, nor spend inordinate time on a myriad of single instances;
- Diminish domestic violence arising from verbal confrontations maximised by the existing high contact and high conflict litigation system and its marked propensity to exacerbate non-cooperative behaviour. The reduction in the need to make expansive ambit claims enables those at risk of harm to get priority based on need, not priority based on the date of filing; and
- A refusal to tolerate delays in making payments to your life partner or forbidding an engaged parent to play a role in their children’s life pathway.
Far too many Australians fall outside the system if their spouse is uncooperative during negotiations. The reforms proposed by the Family Law (Self-Assessment) Bill 2019 support family law clients to achieve a more efficient resolution.
ABOUT LARA MENON
Earlier in 2019, Lara was selected by the NSW Law Society to undertake an internship with the NSW Coroner’s Court, working as a Judge’s Associate for the Deputy State Coroner.
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