Making the family law system safe, co-ordinated and accessible

Making the family law system safe, co-ordinated and accessible

Tuesday, 27 November 2018

We welcome the clear focus on safety, early intervention and accessibility in the Australian Law Reform Commission’s (ALRC) discussion paper on the future of the family law system in Australia, and have made further recommendations in our new submission to the ALRC.

This follows our earlier recommendations of 15 reforms to improve the safety, accessibility and inclusiveness of the family law system, as well as five directions for improving the response to family violence in particular.

The discussion paper makes over 120 proposals for change and is part of the ALRC’s review of the family law system, which is due to release its final report in March.

We are broadly supportive of the ALRC’s proposals but have also identified six areas for the ALRC to consider further as it develops its final recommendations.

Creating an accessible system

The current family law system is fragmented and families can’t always access the support they need at the right time, including legal help, family violence services, counselling and parenting supports. Earlier help, and strong connections between services to ensure families can access co-ordinated support, would reduce the need for lengthy court proceedings and reduce the harm to families and children caused by lengthy disputes.

Our practice experience suggests that the most effective way to do this would be to build on existing services, by investing in statewide legal triage, resourcing family support services adequately, expanding integrated practice initiatives, like existing health-justice partnerships, and establishing navigator or case manager roles within existing services.

Supporting families to resolve disputes about property and financial arrangements

Our experience shows that for vulnerable clients, a property settlement or access to modest income support can be crucial to preventing entrenched poverty following the end of a relationship, particularly where there has been family violence.

We support the significant reforms in this area proposed by the ALRC and suggest further changes to the law so that parties better understand their financial entitlements after separation and can negotiate without going to court. People should also be under stronger obligations to make full and frank financial disclosure after separation and the courts should have powers to gather financial information, for example from the Australian Taxation Office, so that it is harder to hide income and assets. We also support the introduction of a new scheme to make spousal maintenance applications easier.

Improving availability of legally assisted family dispute resolution

Family dispute resolution (FDR) is a critical part of the system and helps many families make decisions about the best arrangements for their children without needing to go to court. However, many families are screened out of FDR because they have complex needs or risks, such as family violence or mental health issues.

Legally-assisted family dispute resolution is a case-managed process that includes ongoing risk assessment to prioritise safety. It can greatly assist families by providing timely legal advice and advocacy, particularly if they are financially disadvantaged or experiencing other issues that impact on their own capacity to negotiate.

We would like to see investment in making existing legally assisted FDR services more widely available to facilitate the earlier resolution of disputes, including for property and financial disputes. It should also be recognised as an appropriate FDR model for Aboriginal or Torres Strait Islander people, supported by greater access to legal help provided by Aboriginal legal services.

Creating a cohesive and co-ordinated court intake, triage and case management process

The court is not only a place where disputes get decided but a place where families come into contact with the family law system, so we should maximise this opportunity to provide better help.

We strongly support the ALRC’s proposals for a court triage, risk assessment and case management process to ensure a more targeted and well-rounded response for children and families who end up at court, many of whom have multiple and intersecting needs. We also welcome the proposed expansion of the Family Advocacy and Support Services, which bring together duty lawyer and family violence support services at court each day.

The significant presence of family violence across family law matters generally also needs to be recognised. We recommend changes to the law to make the courts decide early about family violence, so that ongoing court proceedings and court orders are informed by safety and risk factors. This would also reduce the need for a specialist family violence court list.

Enabling safe information sharing

Safe information sharing between the federal family law system and the state and territory child protection and family violence systems could improve co-ordination, and the identification and management of risk for vulnerable children and families.

In our experience, information sharing can lead to better decision-making informed by the best evidence and all relevant information. However, it is critical that only appropriate information is shared and that the receiver of information understands its relevance to the decision they are making. We would like to see further consideration in the ALRC’s final report of the risks of sharing information and how these will be addressed.

The proposals as a whole

We have prepared this submission drawing on our extensive experience as both the co-ordinator of thousands of legally-aided family law services for children and parents each year and the largest family and children’s law practice in Victoria. National Legal Aid (NLA) has also prepared a comprehensive submission to the Discussion Paper which we endorse.

In the final report we would like to see guidance about:

  • which proposals need to be seen as a package and accepted and implemented together, including an outline of this in a timetable for implementation.
  • how existing infrastructure and promising initiatives can be strengthened. Funding for new initiatives should not be at the expense of increased and guaranteed future funding for existing and proven parts of the system.
  • prioritisation of resources and investment, including for building workforce capacity, knowledge, and skills.

We look forward to reading the ALRC’s final report in March 2019.

More information

See our full submission to the ALRC’s discussion paper.

Read our previous submission to the ALRC’s Issues Paper.

Read our 15 reforms to improve the family law system.

Read our five directions,15 recommendations to improve the family law system’s response to family violence.

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