Family Law for the Future — An Inquiry into the Family Law System FINAL REPORT ALRC Report 135 March 2019 Family Law for the Future — An Inquiry into the Family Law System FINAL REPORT ALRC Report 135 March 2019 This Final Report reflects the law as at 5 March 2019. The Australian Law Reform Commission (ALRC) was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 4, Harry Gibbs Commonwealth Law Courts Building, 119 North Quay, Brisbane QLD 4000. Postal Address: PO Box 12953, George Street QLD 4003 Telephone: within Australia (07) 3248 1224 International: +61 7 3248 1224 Email: [email protected] Website: www.alrc.gov.au ALRC publications are available to view or download free of charge on the ALRC website: www.alrc.gov.au/publications. If you require assistance, please contact the ALRC. ISBN: 978-0-6482087-4-7 Commission Reference: ALRC Report 135, 2019 © Commonwealth of Australia 2019 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Requests for further authorisation should be directed to the ALRC. Printed by Fineline Print & Copy Service, NSW The Hon Christian Porter MP Attorney-General of Australia Parliament House Canberra ACT 2600 31 March 2019 Dear Attorney-General Review of the Family Law System On 27 September 2017, the Australian Law Reform Commission received Terms of Reference to undertake an inquiry into the family law system. On behalf of the Members of the Commission involved in this Inquiry, and in accordance with the Australian Law Reform Commission Act 1996 (Cth), I am pleased to present you with the Final Report on this reference, Family Law for the Future—An Inquiry into the Family Law System (ALRC Report 135, 2019). Yours sincerely, The Hon Justice SC Derrington President Contents Terms of Reference 5 Participants 7 Acknowledgements 11 Glossary 13 Recommendations 15 Outcomes 25 Figures and Tables 27 1. Framing the Inquiry 29 The Inquiry 29 Articulation of the problems 31 The impetus for reform 32 Process of reform 34 Overarching principles 36 2. The Family Law System in Context 55 The family law system in Australia 55 A brief history 56 A public health approach to family law 59 A law reform response 63 Related inquiries 66 3. The Family Law System: The Data 79 Introduction 79 About the data 81 Snapshot of the case load of the family courts 82 Family dispute resolution 84 Matters filed in the courts 85 Participants in the family law system 96 Court delay 103 Family violence and abuse 103 Western Australia: Snapshot 105 ALRC information gathering 107 2 Review of the Family Law System 4. Closing the Jurisdictional Gap 111 Introduction 111 Devolution of family law jurisdiction 113 Information sharing 143 5. Children’s Matters 155 Introduction 155 Legislative framework 158 The paramount importance of the child’s best interests 160 Principles and objects 162 Simplifying and clarifying judicial decision making 163 Simplifying the best interests factors 165 Clarifying parental decision making provisions 172 Requirements to consider particular care arrangements 176 Improved guidance material 182 Aboriginal and Torres Strait Islander concepts of family 183 A less adversarial approach 185 6. The Case for Reforming the Division of Property 195 Introduction 195 Property settlement 197 Specific aspects of property to be considered 204 7. A Simplified Approach to Property Division 217 Introduction 217 A clearer approach to property settlement 218 Debts 227 Superannuation 233 Binding financial agreements (BFAs) 236 Spousal maintenance 236 A compensatory framework for family violence 240 8. Encouraging Amicable Resolution 247 Introduction 247 Financial circumstances of separated families 248 Resolution pathways 248 Dispute resolution and models 251 Greater use of non-court avenues for property and financial matters 257 Admissibility and confidentiality of FDR in property and financial matters 271 Contents 3 Supporting more FDR and LADR 272 Disclosure obligations 276 9. Arbitration 279 Introduction 279 Financial matters 281 Children’s matters 289 Power to make directions 292 Compulsory arbitration 293 Funding for existing models 294 10. Case Management: Efficiency and Accountability 295 Introduction 295 Overarching purpose of family law practice and procedure provisions 297 Misuse of processes and systems 302 Vexatious proceedings and summary dismissal powers 311 Case management 312 Costs 331 Protected confidences 335 11. Compliance with Children’s Orders 339 Introduction 339 Supporting compliance with parenting orders 341 Leave requirements 348 Consequences of failure to comply with children’s orders 353 12. Support Services in the Courts 357 Introduction 357 The importance of such services for children 359 Enhanced support for children and families 365 Strengthening the role of the Independent Children’s Lawyer 371 Indigenous Liaison Officers 378 Supported decision making in the family law system 379 Litigation representatives in family law proceedings 381 13. Building Accountability and Transparency 385 Introduction 385 System oversight 386 A Children and Young People’s Advisory Board 395 Judicial appointments 397 4 Review of the Family Law System Family violence skills for lawyers 405 Accreditation of private family report writers 410 FDRP accreditation in property and financial matters 414 Accreditation of Children’s Contact Services 416 Workforce capability for the family law system 419 14. Legislative Clarity 423 Introduction 423 General comments on drafting family law legislation 424 Simplifying family law legislation 425 Privacy provisions 435 15. Primary Interventions 445 Introduction 445 National education and awareness campaign 446 Access to information about the family law system 449 Referral relationships with universal services 453 16. Secondary Interventions 457 Introduction 457 The Family Advocacy and Support Service 458 Family Relationship Centres 464 Specialist service provision 471 Appendix A Preliminary Consultations 473 Appendix B Second Round Consultations 475 Appendix C Final Round Consultations 481 Appendix D Issues Paper Questions 483 Appendix E Discussion Paper Proposals and Questions 489 Appendix F List of Submissions to the Issues Paper and Discussion Paper 517 Appendix G Examples of Redrafted Provisions 531 Appendix H Suggested Restructure of Children’s Provisions 549 Appendix I Primary Sources 561 Appendix J Existing and Proposed Decision Making in Children’s Matters 573 Terms of Reference Review of the family law system I, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to: y the fact that, despite profound social changes and changes to the needs of families in Australia over the past 40 years, there has not been a comprehensive review of the Family Law Act 1975 (Cth) (the Act) since its commencement in 1976; y the greater diversity of family structures in contemporary Australia; y the importance of ensuring the Act meets the contemporary needs of families and individuals who need to have resort to the family law system; y the importance of affording dignity and privacy to separating families; y the importance of public understanding and confidence in the family law system; y the desirability of encouraging the resolution of family disputes at the earliest opportunity and in the least costly and harmful manner; y the paramount importance of protecting the needs of the children of separating families; y the pressures (including, in particular, financial pressures) on courts exercising family law jurisdiction; y the jurisdictional intersection of the federal family law system and the state and territory child protection systems, and the desirability of ensuring that, so far as is possible, children’s matters arising from family separation be dealt with in the same proceedings; y the desirability of finality in the resolution of family disputes and the need to ensure compliance with family law orders and outcomes; y the benefits of the engagement of appropriately skilled professionals in the family law system REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to ss 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a consideration of whether, and if so what, reforms to the family law system are necessary or desirable, in particular in relation to the following matters: y the appropriate, early and cost-effective resolution of all family law disputes; y the protection of the best interests of children and their safety; y family law services, including (but not limited to) dispute resolution services; y family violence and child abuse, including protection for vulnerable witnesses; y the best ways to inform decision makers about the best interests of children, and the views held by children in family disputes; 6 Review of the Family Law System y 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; y 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; y rules of procedure, and rules