A fascinating behind-the-scenes look at the Family Law Act
This year marks the 20th year of my work in family law. On a daily basis, my job requires reflection and constant improvement to help separated families stay out of the Family Courts. I’m privileged to be able to assist clients to separate safely and respectfully and guide them through resolution pathways, away from Courts. There will always be those minority cases that need judicial determination but thanks to recent major reforms in legislation and within the Court system, litigants can expect their cases will be concluded more efficiently than ever before.
The Family Law Act was enacted in 1975. At that time, it contained around 3,000 words relating to children. Most of those words were formal and technical (legalese), and plenty was ambiguous. Today, the Family Law Act has around 50,000 words that relate to children and are aimed at helping parents to focus on what arrangements will serve the best interests of their children. Measures designed to protect families are ineffective unless they are understood.
Since 2018 the Family Courts have increased their Registrar numbers from 38 to 110. An additional 52 Judges and 30 Court Child Experts have been appointed. Since September 2021, the Family Courts’ caseload is 130% more efficient. The days of litigants having to wait for several years for a trial date, then another several years from their trial date to receiving judgment, are behind us. The Family Courts now promise us that wherever possible, cases will be listed within 12 months from when proceedings are started and judgments will be delivered within 3 months of final submissions.
The Family Courts continue to spruik private mediations, but also now offer Court-Based Dispute Resolution. Depending on the nature of the dispute, it is expected that the parties will participate in a Court-Based Settlement Conference within 5 months from the date of filing. Parenting cases are referred to Settlement Conferences conducted by a Judicial Registrar (acting as a Family Dispute Resolution Practitioner) and attended by a Court Child Expert (acting as a Family Counsellor). Since 2021 the Family Courts have conducted over 4,100 settlement conferences in parenting cases, of which 55% were resolved including entrenched matters that had been in the system for years.
Domestic Violence and the Lighthouse Project
47 years ago when the Family Law Act was written, domestic violence was considered a private matter. It happened behind closed doors and stayed there. Thankfully, it is now recognised that privacy must not be allowed to hide family violence. The research and evidence are clear; children exposed to domestic violence are 5 times more likely to engage in a mental health service by 18 years of age. In 2020 the Family Courts introduced the Lighthouse Project, a world-first initiative to screen litigants for risk factors including domestic violence to allow resources and urgency to be given to such cases. Its success has been recognised internationally; the United Kingdom is now following suit.
There is a special list for cases commenced after September 2021 where the value of the net property of the parties is under $500,000 (FAM-PPP500). Its purpose is to achieve a just, efficient and timely resolution of cases at a reasonable and proportionate cost to the parties, typically requiring only one attendance from start to finish. Since its introduction, only 5% of cases in the list have been intractable and required a final hearing. It’s a measure that has proven effective in protecting women wanting to leave a violent relationship who couldn’t otherwise afford to leave.
A hopeful future
Over the last 2 decades I’ve witnessed countless changes in the family law space, but none as hopeful or impactful as those that have occurred in the last 2 years. Going forward there is good reason to believe that the hordes of war stories about divorce will be replaced with triumphant tales of separated couples who have found their path to peace.
If you have separated and would like to discuss your options with a member of our family law team, please call us at MBA Lawyers today on 07 5651 2000.
Credit for the statistics used in this article goes to Chief Justice William Alstergren Chief Justice (Division 1) and Chief Judge (Division 2) Federal Circuit and Family Court of Australia, Mr Mark Dreyfus Commonwealth Attorney-General Attorney-General’s Department and Ms Di Simpson Partner DDCS Lawyers (Plenary 1: State of the Nation, 19th National Family Law Conference)