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Howard government reforms that enshrined shared care for mothers and fathers after separation could be unwound and the best interests of children taken into account when dividing property between their parents, as part of a major review of the family law system.
Children could also be given more of a say during the resolution of family disputes, and a new system for handling small property claims introduced so that couples with minimal assets are not mired in costly litigation.
These are among the options for change canvassed in a 93-page issues paper that will be released by the Australian Law Reform Commission this morning, as part of the first comprehensive review of the family law system since the Family Law Act was introduced in 1976.
The ALRC has been asked by the Turnbull government to look at whether family law disputes could be resolved more quickly and cost-effectively, and whether the act should be modernised, given the increasingly diverse ways in which families are formed and greater awareness of the impact of violence and abuse.
However, the review risks reigniting bitter divisions between women’s groups and fathers’ groups over whether changes that championed shared care for children in separated families should be scrapped.
A presumption in favour of equal shared parental responsibility, which does not apply in cases of violence or abuse, was introduced by the Howard government in 2006, in response to intense lobbying from fathers’ groups.
Courts are required to consider whether equal time with both parents is in the child’s best interest if an order for equal parental responsibility is made.
The issues paper, which invites comment on possible reform options, asks whether the presumption should be removed, citing concerns it has created confusion among parents, added complexity to litigation and contributed to an escalation of conflict in some cases where parents must make decisions jointly.
The ALRC issues paper also asks whether:
Alternative dispute resolution should become compulsory for financial disputes (at the moment it is only mandatory before most parenting matters can be filed in the family law courts);
The act should be updated so it applies to all children, regardless of their family structure, including children born via surrogacy and assisted conception processes, and Aboriginal children who may have caregivers from a wide network;
New non-adversarial models of resolving family law disputes should be introduced, especially in cases of violence;
Extended family members should take part in litigation involving parents with complex needs, such as mental health problems and alcohol abuse;
Changes are needed to give couples greater certainty when entering into binding financial agreements or pre-nuptial agreements; and
Mechanisms are needed to improve accountability, including to investigate complaints about judges and family consultants.
The ALRC will release a discussion paper in September that outlines its preliminary proposals for reform, with a final report due in March next year.
People have been invited to share their experiences of the family law system via an online portal on the ALRC website, which will close on May 7.
[Tell us your story about the Family Law system]
[ALRC Review of the Family Law System – Call for submissions]
The issues paper also questions whether changes are needed to ensure the family law system cannot be misused by individuals who try to instigate multiple court proceedings, make repeated notifications to child protection agencies or drag out litigation as a form of abuse.