What’s happening in Family Law?
Be careful which news report you read regarding what’s changing in Family Law. There have been many suggested changes put forward over the last year. All the talk culminated last month, in the release of the Law Reform Commission (ALRC) review. Here’s a quick update on the review – and a few other changes.
The Australian Law Reform Commission’s (ALRC) final report into the Family Law System was released last month.
This was the first comprehensive view of the family law system since the Family Law Act commenced in 1976.
In announcing the tabling of the report, the ALRC stated that its report “had made 60 recommendations for reform”. This included the (most significant) recommendation, “that the resolution of family law disputes be returned to the States and Territories and that the federal family courts eventually be abolished”. It was noted, “that under the current system, children fall through the gaps between the family law courts, the child protection systems and the State and Territory responses to family violence. This can be remedied only by having a single court focussed on the best interests of the child that is able to resolve all family law, child protection and family violence issues together”.
While the Government had repeatedly said (as part of the merger bills debate) that the ALRC report would not contain recommendations for structural reforms, that did not prove to be the case.
The recommendations address a broad range of issues including how property settlement, superannuation splits, and interim spouse maintenance matters could be better dealt with.
It will be a ‘wait and see’ as to what the next federal government chooses to do with the extensive review recommendations.
Family Court merger off, for now
There has been significant discussion in the media over the last year about a potential merger of the Family Court and the Federal Circuit Court. Despite the ALRC having the issue as part of its review for consideration, the federal government proceeded to try and have legislation passed that would achieve this. See our article ‘Has the Family Court changed? Or hasn’t it?‘.
As part of this process a Senate Committee reviewed the legislation, a majority supported it however a vocal minority opposed it.
The result was that with only a couple of parliamentary sitting days before the federal election, the government failed to obtain the necessary cross-bench support to proceed with the proposed legislation and it did not proceed.
So, the proposed merger of the Federal Circuit Court and Family Court is off the table for now, but change, including an alternate model for a restructuring of federal courts, is likely to not be far away on the other side of the election.
Joint Court working group
The Family Court and Federal Circuit Court have taken a step towards reform and develop a unified family law process.
In response to requests by the legal profession and the community for changes to the family law system. The courts have set up a working group to look at establishing a common set of rules, forms and case management in the Family Court and Federal Circuit Court.
Currently, the two courts have two different sets of rules, form and processes. This has resulted in confusion and inefficiencies.
New Court Family Violence Plan
The Family Court and the Federal Circuit Court last month released the Family Violence Plan. It provides a comprehensive set of actions that will support people who are experiencing, or are at risk of, family violence.
The plan has refined and updated the Family Violence Plan 2014-16. It builds on the Courts 2014-16 Plan and will be used by administrative staff, decision-makers, legal practitioners, services providers and others involved in the overall family law system.
The Plan covers areas as diverse as building layout, security screening, risk assessment, safety planning for individual litigants, and education and training of staff. It also covers the review and updating of the Family Violence Best Practice Principles, a document designed to assist judges, legal practitioners and litigants understand the legal requirements for all matters in which family violence is alleged.
New rules for cross-examination of victims of Domestic Violence
From 11 September 2019, new arrangements will begin regarding the cross-examination of victims of domestic violence in the Family Court and Federal Circuit Court.
This is relevant for parties who are self-represented in the Family Court and Federal Circuit Court. If a person is acting on their own behalf without a lawyer at a trial, they are prevented from cross-examining the other party, in the following circumstances:
- There is an allegation of family violence between the person wanting to cross-examine and the witness they are wanting to cross-examine.
And one of the following applies;
- Either party has been convicted of, or is charged with an offence involving violence or threat of violence to the other party; or
- A family violence order applies to both parties (final order only); or
- The court at their discretion makes such an order.
If a party finds themselves in this scenario they will have to engage a legal representative to undertake the cross-examination on their behalf.
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