Following on from the Senate’s recent rejection of the proposed amalgamation of the Family Court of Australia and Federal Circuit Court of Australia, the highly anticipated Final Report of the family law inquiry was published by the Australian Law Reform Commission (ALRC) on 10 April 2019. In the report, there are 60 recommendations on how the family law system should be improved. Many of the proposed changes, if implemented, will simplify the family law system and hopefully reduce the lengthy delay experienced by many families.
Some of the recommendations of practical relevance to families include:
Child’s best interests
The child’s best interests are of paramount consideration to the Court when making a parenting order. The Family Law Act currently stipulates 2 primary and 14 additional considerations to be taken into account when determining the child’s best interests.
The report recommends 6 factors to be taken into account in determining the child’s best interests. The proposed factors are:
- What arrangements would best promote the safety of the child and carers, including safety from family violence, abuse or other harm;
- Any relevant views expressed by the child;
- The developmental, psychological and emotional needs of the child;
- The benefit to the child of maintaining a relationship with each parent and other people who are significant to the child, where safe to do so;
- The capacity of each proposed carer to provide for the developmental, psychological, and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist with caring; and
- Anything else relevant to the circumstances of the child.
The report recommends that the presumption of ‘equal shared parental responsibility’ be replaced with a presumption of ‘joint decision making about major long-term issues’.
Live with/spend time with orders
The report recommends the deletion of section 65DAA of the Family Law Act. This section requires that, if a child’s parents are to have equal shared responsibility for the child, the court must:
- Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
- Consider whether the child spending equal time with each of the parents is reasonably practicable; and
- If it is, consider making an order for the child to spend equal time with each of the parents.
If the court does not make an order for the child to spend equal time with each of the parents, then s65DAA goes on to say that the court must conduct a similar analysis with respect to making an order that the child spends substantial and significant time with each of the parents.
The reality is that the Court does not often make an order for the child to spend equal time with each parent, unless this has been agreed to by the parents. Putting aside cases where safety is a factor, it is generally considered that, in most cases, a child benefits from primarily living with one parent and spending substantial and significant time with the other parent.
The report recommends that the parties meet with a Family Consultant following the making of final parenting orders. The Family Consultant’s role is aimed at making sure the parties understand the orders and their obligations, which may reduce the likelihood that one or both parties contravene the orders.
The report recommends to simplify the approach in relation to the division of property. Some of the important recommendations are:
- There be a presumption of equality of contributions during the relationship. A presumption can be rebutted in the appropriate circumstances.
- There be a presumption that the value of superannuation assets accumulated during the relationship be divided equally.
- The relevant date for valuing the assets and debts be the date of separation, unless the interests of justice require otherwise. This will be of particular relevance to people who have not carried out their property settlement soon after separation and have disposed or acquired of assets and debts existing at separation. Currently it is the assets and debts which exist at the time of doing your property settlement which are taken into account.
- That, in property and other financial matters (e.g. spousal maintenance), you must take genuine steps to attempt to resolve the matter prior to filing an application for court orders. A failure to take such steps would result in the Court not hearing the dispute and may have consequences in terms of court orders for payment of legal costs
The proposed changes may result in there being less dispute regarding the division of property in a lot of relationships.
There are many other recommendations in the report and the full report and summary of recommendations can be found on the ALRC’s website. It is important to remember that they are only recommendations and there have been no changes to the law at this stage. There is a process that must be followed in order to change the legislation and this may be impacted upon by the federal election.
Update 3 May 2019
Another recommendation arising from the inquiry is to return the power in relation to family law disputes to State and Territory Courts rather than the Federal Family Law Courts (Family Court of Australia and Federal Circuit Court of Australia). A short summary of this recommendation and the reasons behind it can be accessed from the Australian Law Reform Commission website.
The Family Law Courts rely on parties and/or legal representatives to bring to their attention all relevant State Court matters, such as where an Apprehended Domestic Violence Order exists, or if one of the parents has an alarming criminal history. This is one of the main reasons why it is recommended that there is one court that deals with all these matters to ensure that fully informed decisions can be made.