Review of the Family Law System: Discussion Paper Overview Dr Andrew Bickerdike Part time Commissioner Australian Law Reform Commission

Australian Law Reform Commission Process

ALRC Discussion Paper 86 Invited submissions on 124 proposals for change and requests views on 31 specific questions Discussion Paper responds to the terms of reference, taking into account submissions (more than 480), consultations (more than 100 around the country), research and previous reports Submissions on the proposals and questions were due 13 November 2018 Final report due 31 March 2019

Terms of Reference Ask the ALRC to consider the appropriate role of the family law system in contemporary Australia and how it can be more responsive to the families who need its services. Includes questions about the need for reform in relation to: the affordable and safe resolution of family law disputes; the substantive law governing decisions about parenting and property disputes; how the system relates to other services and systems; and its culture, structure and governance.

whether the system’s processes for resolving and adjudicating disputes are well adapted to meet the needs of separated families; how best to support the involvement of children in family law processes; the development of integrated services for families with complex needs; the competencies and skills required of family law system professionals and ensuring these are maintained; and the system’s governance practices and accountability mechanisms.

Key principles A client-centred approach to developing reform proposals emphasising: Safety and well-being of children and families Need for collaborative and coordinated service delivery Accessibility for all families Non-adversarial approaches A strengthened focus on children and young people: safety, needs, participation A need to build trust in the system A public health approach: recognising that separated families have varying levels of need

Public health approach A public health approach focuses on preventing health problems in a way that extends better care and safety to entire populations rather than individuals (WHO, 2002) An approach that aims to prevent problems from occurring in the first place, to quickly respond to problems if they do occur, and to minimise any long- term effects and prevent reoccurrence. A public health approach comprises three levels of intervention: primary, secondary and tertiary. Whilst the public health approach was originally designed for disease prevention, it has been modified for preventing violence against women promote equal and respectful relations between men and women; promote non-violent social norms and reduce the effects of prior exposure to violence; promote access to resources and systems of support (VicHealth, 2007).

Key proposals Education, awareness and information: strategies at the primary level of intervention Simpler, clearer legislation Integrated pathways for advice and support: Families Hubs, expanded Family Assistance and Support Services Enhanced family dispute resolution Courts: greater emphasis on triage, risk assessment, co-location of state/federal courts, post-order support, safety in the court environment Participation of children and young people: positive obligation to support participation, child advocate Strengthening governance: Family Law Commission

Integrated pathways for advice and support Families Hubs (Proposal 4-1) Functions Identify safety, support and advice of needs of clients and children Support development of plans to address these needs Connect clients with services Coordinate engagement with multiple services where needed On-site, out-posted workers from other services including: Family violence services, legal assistance, family dispute resolution, financial counselling, health

Integrated pathways for advice and support Expansion of Family Advocacy and Support Service (Proposal 4-5) Information and referral officer for intake, risk and needs screening and triage Specialist family violence services: support and legal Case management for clients with complex needs who don’t have access to case management elsewhere Extend to a greater number of locations, including rural, regional and remote

Enhanced family dispute resolution Strengthen support for family dispute resolution (FDR) in property and financial matters (Proposals 5-1 to 5-8) Legislative amendment requiring people to attempt FDR in property and financial matters prior to filing a court application, with exceptions Urgency, complexity, power imbalance, non-disclosure, delay or frustration, allegations of fraud Parties be required to lodge a genuine steps statement with a court application, outlining attempts to comply with above requirement or establishing an exception

Enhanced family dispute resolution Greater support for legally assisted dispute resolution (LADR) in property and financial matters and children’s matters: development of effective practice guidelines (Proposal 5-10) When LADR should NOT be applied in matters involving family violence and other risk related issues Effective practice in screening for, assessing and responding to a range of risk issues Respective roles and responsibilities of professionals Culturally appropriate practice Approaches for LGBTIQ, families, families affected by disability

Courts: triage and specialist pathways Triage (Proposals 6-1 and 6-2) Team based approach involving registrars, family consultants Referral to alternative dispute resolution and specialist court pathways as appropriate Initial and ongoing risk and needs assessment and case management Specialist court pathways (Proposal 6-3) Small property matters (Proposals 6-4 - 6-6) Specialist family violence list (Proposal 6-7) Indigenous list

A post-order parenting support service Proposals 6-9 to 6-11 Functions Education about child development and conflict management Dispute resolution Decision making in relation to implementing parenting orders Family Law Commission should develop accreditation and training requirements

Children and young people Legislative amendment to support a positive obligation to afford children and young people an opportunity (as far as practicable) to express their views in Court proceedings Family dispute resolution (Proposals 7-3 and 7-4) Initial and ongoing risk assessment and risk management strategies (Proposal 7-6) Children should not be required to express a view in court or FDR processes (Proposal 7-7)

Children and young people Participation: a new model (Proposal 7-8 to 7-10) A ‘child advocate’ with social science training and expertise in child development and working with children to support participation in court processes Explains options for making views heard Support child to understand their options and express their views Ensure views are communicated to the decision maker Keep child informed of progress and explain outcomes If a child is not able to be a supported to express a view, support participation and advocate for interests

Children and young people A separate legal representative (Proposal 7-10) Evidence gathering Managing litigation Mechanisms for expressing views (Proposal 7-11) Report prepared by children’s advocate Meeting decision maker supported by the children’s advocate Directly appearing, supported by a children’s advocate A Children and Young People’s Advisory Board (Proposal 7-13)

Oversight Family Law Commission (Proposal 12-1) Functions Monitor system performance Accreditation of professionals and agencies, oversight of training requirements Guidelines to support professionals Resolve complaints about professionals and agencies Conduct inquiries: own motion or by referral from government

Final Report Will contain final recommendations to government These will be developed in light of submissions received in relation to the proposals in the Discussion Paper