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Courts would no longer be forced to consider equal time for both parents and a new system of state courts would be set up, as part of the biggest proposed overhaul of the family law system since the Family Court was created almost 45 years ago.
In a 583-page report released yesterday, the Australian Law Reform Commission warned federal family courts “may no longer be fit for purpose” and said the existing model, in which litigants bounced between federal and state courts, “fails to meet the needs of children and families”.
The report reveals 45 per cent of families that proceed to a final family law judgment in the Federal Circuit Court are being referred to state child welfare agencies.
As previously revealed by The Australian, the ALRC has urged the government to create a new system of state courts that could deal with federal family law and state-based child protection and violence matters.
Law Council president Arthur Moses said Attorney-General Christian Porter’s failure to share the report with senators when urging them to support his plan to merge the two existing federal family courts was a “breach of trust”. He said convincing the states to create and fund new courts would be “like herding cats”.
Mr Porter said the government was “committed to ending unnecessary costs and delays for families” and he had asked his department to consider the report.
University of Queensland dean of law Patrick Parkinson said the proposal to create new state courts appeared radical but made “a great deal of sense”. He said existing federal court buildings could be used and current family law judges could be given dual commissions as state judges, to enable them to deal with state-based family violence and child protection matters.
However, others said unwinding the federal family court system would be like “unscrambling 1000 eggs” — and that obtaining the agreement of the commonwealth, state and territory governments, as well as judges, would be a “herculean task”.
Bravehearts founder Hetty Johnston said “handballing” the problem to the states would not fix anything and the situation in Western Australia, where state family courts already existed, was no better than anywhere else. She said a multi-disciplinary team should be set up to investigate child abuse allegations.
The ALRC has also controversially recommended overhauling shared parenting laws introduced by the Howard government in 2006. It called for the scrapping of section 65DAA, which requires judges in certain cases to consider whether children should spend equal time, or substantial and significant time, with each parent.
Lone Fathers Association’s Barry Williams warned the government would “see the biggest demonstration they had ever seen” from parents if it tried to remove the section.
Professor Parkinson, one of the architects of the Howard government laws, said he would be “happy to see it go” — however, he wanted the shared parenting laws to retain recognition that the best interests of children were met by both parents having a meaningful involvement in their lives.
Other proposals in the report were aimed at reducing the cost and delay to families of using the system. These included a new duty on litigants and lawyers to co-operate and to resolve disputes as quickly, inexpensively and efficiently as possible. A breach of this duty would result in the person being forced to pay the other side’s legal costs.
Opposition legal affairs spokesman Mark Dreyfus said Labor would consider the recommendations carefully.