Unpacking the ALRC review of the Family Law System Final Report
None of us would be attending this conference if we did not place a high emphasis on the satisfactory resolution of disputes between, or among, people whose relationships have broken down.
I therefore doubt that anyone here would disagree with the overarching principles set out in [1.25] of the ALRC’s report.
There is no doubt that the present Family Law system is creaking under the load of piecemeal amendments to the Family Law Act 1975 and the change in societal circumstances since the Act first came into operation on 5 January 1976.
We expect more of everyone who is involved in the system, from the disputants themselves, through to the support workers whose jobs have changed so much in the last 43 years, to the courts, and those who work in them. It has been a period of change in our common understanding of the processes which were workable or working in the 1970s to a common acknowledgement that we collectively can, and must, do better.
The failings in the system are reflected in the submissions received and the palpable atmosphere of disappointment and discontent. Many sought major changes to the system and many again called for much increased resourcing of the system.
In that context it is hardly surprising that the Report of the ALRC does not meet with universal acclamation. To some, the recommendations are too radical: to others, they are not radical enough. What they do provide is a comprehensive review of the system. The recommendations also require significant funding and realistically this is not the present political climate. Politicians in particular, want the whole thing to go away – without any cost.
The reality is that relationships will continue to break down. It is part of our task as a society or a community to stop finger-pointing and hand -wringing and to seek and find better ways of supporting and dealing with those in dispute.
The ALRC’s Report is not the answer but the start of a vital conversation.
- The present legislation bares all the marks of successive lobbying from different groups. It is complicated and arcane. Should the children’s best interests be the sole or at least predominant criterion? Is safety part of that?
- What does equal shared responsibility mean? Should courts (or parents) be obliged to consider specific living arrangements for the children such as the children spending equal time with each parent?
- What can be done to enable children’s voices to be heard?
- Are we meeting our obligations under the Convention on the Rights of the Child?
- What can be done to simplify the process? What happened to the less adversarial trial?
- How can we find better ways to resolve disputes about children?
- Can orders about children be enforced?
- Does anyone know what the law is at present? Can it be made more accessible? How? What can be done to make resolving the conflict more effective?
- Should violence within a relationship affect how property is divided?
- How can we help those who bargain in the shadow of the law?
Other things not recommended:
- What happened to the concept of Hubs?
- Why is there no recommendation for child advocates?
- Would tribunals help?
We can all start this conversation, but it is not a singularity. Our conversations will continue, and the system will evolve.
The Honourable John Faulks was appointed as a judge of the Family Court of Australia in 1994, and Deputy Chief Justice of the Family Court in 2004. His many contributions to the court included oversight of the Magellan project, an interagency collaborative model of case management developed to deal with Family Court cases involving serious allegations of physical and sexual child abuse. John was also instrumental in the development of the Less Adversarial Trial process, and the initiative to address the needs of self-representing litigants within the Family Court. He retired from the Family Court in 2016, after 22 years of service.
He was appointed as a part-time ALRC Commissioner in October 2017, to assist in the Review of the Family Law System.
Prior to judicial appointment, John was in private practice for 26 years, as a barrister and solicitor. He has been President of the ACT Law Society, President of the Law Council of Australia, and Chair of the Family Law Council.
John is an Adjunct Professor at the University of Canberra, and an occasional lecturer at his alma mater, the Australian National University. He is also currently a mediator, and Chair of the National Centre for Australian Children’s Literature.