We envision a family law system that keeps people safe and helps them to resolve disputes early and in the best interests of their children.
The current challenges – complexity, delays, and demand
Most separating parents resolve their disputes without needing to go to court. However, families that do need the help of the family law system are usually experiencing multiple and complex challenges that create additional safety risks for children and families. Commonly, this can include experiences of family violence.
As an increasing number of matters have become more complex, families involved in the family law system are also experiencing longer wait times to resolve their family law legal problems. Delays can contribute to prolonging conflict and safety risks for families and are a consequence of the lack of resources in the family law system.
It is also likely that the difficulty for families to access legal advice, and an increase in family violence and family breakdowns during the COVID-19 pandemic will further exacerbate delays in the family law system and add complexity to many separating family disputes.
Four priority areas for reforming the family law system
We see several opportunities for comprehensive reform to help separating families and support the best interests of children in a safe and timely way.
1) Family violence is identified early and responded to appropriately
Responding to family violence is core business for the family law courts. The family law system should be designed to promote the early identification and appropriate response to family violence allegations in family law matters, this could be achieved by:
- Introducing early and ongoing family violence risk assessments for parents and children to support the effective triage and case management of family law matters.
- Identifying high risk cases through early assessment and determination of family violence allegations – this could be achieved by ensuring the newly expanded COVID-19 prioritises family violence matters and, through resourcing and expanding the Lighthouse , including the Evatt list, to other registries.
- Introducing ongoing case management to ensure that matters are ready for hearing dates and parties have complied with disclosure obligations.
- Providing post-court support to parties to ensure compliance with court orders and to refer parties to receive ongoing support to encourage effective co-parenting.
We are pleased that many initiatives we have been calling for, over several years, are currently being developed or piloted. We encourage efforts to have them implemented consistently across all registries as soon as practical.
The burden on parents experiencing family violence to manage their own safety whilst in the family law system needs to be reduced by:
- Providing ongoing resourcing to effect the legislative ban on direct cross-examination in family law cases where there is or has been a risk of family violence.
- Introducing mandatory and regular training of professionals working in the family law system on the nature and dynamics of family violence so that there is a consistent response to matters involving family violence.
- Implementing safe information-sharing protocols between the state child protection, family violence and family law systems to enhance the quality of decision making for families.
Read Mya’s story to understand why it is important for the family law system to respond early and appropriately to family violence in family law matters.
2) Improved access to justice by funding the family law system to meet demand
Sufficient resourcing is needed to enable families in the family law system to safely resolve their family law legal problems in a timely way and keep children and families safe. Additional investment is needed to support:
- The ongoing availability and expansion of access to specialised legal and non-legal services like Family Advocacy and Support Services (FASS) so that more families across Victoria can receive critical help when and where they most need it.
- Appointments of Independent Children’s Lawyers (ICLs) so that more complex matters benefit from independent advice on the best interests of children.
- Families to resolve their disputes earlier and without going to court, through increasing the availability of legally assisted family dispute resolution (FDR) and negotiation services.
- The Victorian legal sector to meet unmet and increasing demand for legally aided advice and representation.
3) Greater access to legally assisted family dispute resolution so that families can resolve their family dispute without going to court
Legally assisted FDR plays a pivotal role in supporting families to safely resolve their disputes without the stress and delays associated with going to court. Where it is safe and appropriate, we support providing families with the option of participating in FDR with the assistance of lawyers to help each parent to understand the legal process and to achieve the best outcomes for children.
Presently, many families miss out on the opportunity to participate in legally assisted FDR due to the limited availability of the service - each year we assist approximately 1,000 families complete a conference.
We recommended additional investment in legally assisted family dispute resolution to increase access to this important service especially for separated families where parents, carers or children:
- are affected by family violence
- identify as an Aboriginal and/or Torres Strait Islander person
- have a disability
- have culturally and/or linguistically diverse backgrounds
- belong to the LGBTIQ+ community
- seek to divide property.
Read Tran and Henry's story to understand how legally assisted family dispute resolution can help families to resolve disputes without going to court.
Find out more about our family dispute resolution service.
4) A court system that is accessible for families seeking to divide a small amount of property after separation
For many families, even a small property settlement can make the difference between financial recovery after separation or experiencing further financial hardship.
However, the complexity of current family law property division processes and the absence of free or affordable legal assistance means that approaching the family law courts for a division of small amounts of property is often not an option. To support families to agree on how to divide a small amount of assets or debts after separation we recommend:
- Increased access to legal aid assistance to support separating couples to achieve a property settlement, especially in matters involving family violence.
- An expansion of access to legally assisted FDR to assist in the resolution of property disputes earlier and without going to court; and
- An ongoing and well-resourced small property claims list of the family law court to provide a cost-effective option for separating couples who need court assistance to finalise a small property claim.
Read Layla’s story to learn more about the important role a small property settlement can play in creating financial security for vulnerable women and children after a family separation
Read our recent family law reform submissions:
- our submission to the recent House Standing Committee on Social Policy and Legal Affairs inquiry into family, domestic and sexual
- our recommendations to the Joint Select Committee on Australia’s family law
- In 2018, we contributed expertise to the Australian Law Reform Commission (ALRC) review of the family law system. Read our submission to both the ALRC’s discussion and issues paper.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au
Reviewed 28 April 2022