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Government rejects call for state and territory family courts
The Morrison government has accepted more than half of the recommendations of the ALRC’s review of the family law system, but not one that would abolish federal family courts.
Jerome Doraisamy
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Almost two years ago to the day, the Honourable Justice Sarah Derrington delivered the Australian Law Reform Commission’s (ALRC) review into Australia’s family law system – Family Law for the Future — An Inquiry into the Family Law System – to Attorney-General Christian Porter.
The review was the “first comprehensive review of the Family Law Act in 40 years”, and produced 60 recommendations to “simplify and streamline the system, improve safety and deliver faster and more cost-effective resolutions for separating families”.
There is a strong case for reform, the review found, given that the system is “not adequately assisting Australian separated couples to resolve disputes following the breakdown of their relationship”.
“Children are not consistently protected from harm; nor are people experiencing family violence. Disputes are protracted by delays occasioned by resource constraints in the courts but also by the conduct of parties who are unable or unwilling to resolve their dispute quickly and without acrimony,” the authors wrote.
“The substantive law, which has been subject to repeated amendments, is no longer clear or comprehensible.”
Government’s response
In a statement, senator Amanda Stoker – in her capacity as Assistant Minister to the Attorney-General – said that the government, which published a 45-page response to the review on the A-G’s website, is committed to “pursuing a strong agenda of changes that will build a family law system that meets the needs of Australian families and supports them to resolve their disputes in a safe, child-centred, accessible and timely way”.
“Importantly, our response also builds upon the many recent family law reform initiatives delivered by the Government, including significant additional funding, and legislation passed by Parliament last month that will fix the broken structure of the split family law courts system,” she proclaimed.
In its response, the government has agreed either wholly, in principle, or in part with 35 recommendations, noted 19 and not agreed with six.
“Many of the recommendations accepted by the Government represent practical reforms that will help to reduce complexity and make the relevant legislation easier to understand,” Senator Stoker said.
Significantly, however, the government did not agree with the review’s first recommendation, which was to establish state and territory family courts, and state and territory child protection and family violence jurisdictions, in anticipation of eventually abolishing first instance federal family courts.
Such a recommendation has “serious constitutional limitations, would take decades to fully implement and would expose families to widespread duplication during the transitional period”, Senator Stoker argued.
“The reality is that states and territories have always had the ability under the Family Law Act to establish their own family law courts and, with the exception of WA, none have shown any desire to do so,” she said.
The Morrison government has also rejected recommendations to repeal requirements for courts to consider the possibility of a child spending equal, substantive or significant time with each parent; amend legislation to include a presumption of equality of contributions during a relationship; and amend legislation to presume that the value of superannuation assets accumulated during a relationship be split evenly between parties.
“Our Government is committed to providing Australians with an effective, accessible and safe federal court structure for family law matters, and is confident that the legislation that recently passed the Parliament to fix the broken split family law courts structure, coupled with the other initiatives the Government has introduced to improve safety, will significantly improve outcomes for families,” she concluded.
Moving forward, the government noted it will progress legislation to give effect to its response to the view, and will continue to consult with stakeholders on the details of such reform.
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Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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