The March 2021 Report from the Joint Select Committee on Family Law

KEY TAKE OUTS

• Joint Select Committee on Australia’s Family Law System has published its second interim report regarding improvements in family law proceedings.
• The report focuses on key areas of delays, excessive costs, the enforcement of orders and resolution of family violence allegations.

The second interim report by the Joint Select Committee on Australia’s Family Law System was published in March 2021.

It aims to address four key issues, namely ‘extensive delays, excessive legal costs, the difficulty of enforcing court orders, and the timely and fair resolution of family violence allegations.’

Within these aims, it addresses further points relating to the improvement of  interactions between the family law and child protection systems, the reviewing of ‘the direct and indirect’ financial impacts of proceedings on families, and the exploration of any recommended reform beyond the Family and Federal Court merger.

Recommendations Summary

The report provides a series of insightful recommendations to address and implement the intended improvements to the family law system.

Funding for Programs

The first recommendation involves the funding and expansion of certain pilot programs including, but not limited to: the property mediation pilot undertaken by Legal-Aid, the Family Dispute Resolution pilot for Culturally and Linguistically Diverse and Aboriginal and Torres Strait Islander families; and the Lighthouse Project which involves the screening of parenting matters for family safety risks at the point of filing.

Delays

The report then recommends the role of registrars be broadened through judicial power and legislative amendment to assist in case management. This includes implementation of ‘the provision of dispute resolution for parenting matters and expanded availability of conciliation in property matters.’ The expansion of the number of registrars and support staff have also been recommended to help ease the backlog of family court and create a much-needed solution to delays across the system.

Family Violence

It also recommends a mechanism or process that allows the review of allegations that a party is wilfully misleading the court. Furthermore, the committee has recommended a number of amendments to the Family Law Act 1975, including ‘a review of the definitions of domestic violence to ensure a uniform approach by Commonwealth, state and territory governments.’, as well as ‘what actions should courts take to discourage improper applications’ of family violence.

In an outstanding direction to combat the difficult issues of family violence, regular training is recommended to be undertaken by family law professionals and judges on topics such as family violence, abuse and trauma. Continued funding is also recommended for non-legal support services, with a focus on making sure the availability of family support services is equal regardless of gender or financial position.

In a further recommendation to make the family court less adversarial, the report requests that the system ‘should consider how best to involve the voice of children in parenting proceedings.’ While the family court already legally considers the best interests of children, they recommend to directly involve the children’s input in the safest and most preservatory manner.

Fees

An extraordinary suggestion to cap fees in property disputes has also been put forward. The report further suggests to ‘introduce a requirement for proportionality in family law costs generally and to ban disappointment fees’ which is a huge win for struggling Australian families, post-pandemic. Costs reportedly ‘shall not exceed $50,000 or 10% of the combined value of the parties’ identified property and superannuation whichever is the higher.’

However, the Law Council has stated that ‘litigants who reach any capped cost limit could become self-represented in the family law courts system and take up more judicial time’, meaning the suggestion could backfire and cause further delays.

Moving Forward

The above recommendations can be viewed as a radical step forward into the future of Australian Family Law. They seem to acknowledge the emotional and financial struggles of Australian families going through one of the toughest ordeals possible. However, it is now to the Government to implement these recommendations, which have been largely ignored in the past.