Proctor : July 2018
12 PROCTOR | July 2018 QLS responds on family law reform On 9 May 2017 the Turnbull Government announced its intention to direct the Australian Law Reform Commission (ALRC) to conduct a comprehensive review into the family law system. The ALRC will consider reforms necessary to ensure the family law system meets the contemporary needs of families and effectively addresses family violence and child abuse. On 14 March 2018 the ALRC released the Review of the Family Law System issues paper, based on the terms of reference provided by the Attorney-General. The issues paper sets out 47 questions covering a range of issues currently impacting the family law system. In response to the issues paper, the Queensland Law Society Family Law Committee, with contributions from the Children’s Law, the Reconciliation and First Nations Advancement, Equity and Diversity and Access to Justice/Pro Bono Law committees, made submissions to the ALRC and the Family Law Section of the Law Council of Australia. The issues paper posed questions on how access and engagement could be improved, particularly for vulnerable and disadvantaged groups. We recommended that a range of strategies be considered to improve the accessibility of the family law system for Aboriginal and Torres Strait Islander people. These included the development of ongoing and culturally safe education programs on the family law system and that the family law courts adopt a structure and protocols similar to Queensland Murri Court for Aboriginal and Torres Strait Islander families. Importantly, the Society noted that resistance by Aboriginal and Torres Strait Islander people to engagement with the family law system could be the result of the lack of commitment to previous reviews and implementation of recommendations; a historical lack of meaningful consultation and engagement with Aboriginal and Torres Strait Islander communities and organisations; hostile physical environments, policies and legislation, and a lack of Aboriginal and Torres Strait Islander people working within the family law system. In relation to LGBTIQ individuals and families, we noted that any proposals to improve the accessibility of the family law system for this group must be considered in light of the legacy of the discrimination which, for some people, continues to be felt. Parentage issues, in particular, disproportionately impact on LGBTIQ people and the current drafting of the Family Law Act 1975 does not adequately deal with parentage issues for LGBTIQ families. The issue of who may be considered a parent is dealt with differently across various federal and state Acts, and these discrepancies require urgent resolution. In resolving this issue and creating a consistent approach to parentage, the Society supports the implementation of national status of children legislation. We also highlighted the critical role of legal practitioners in the resolution of family law disputes. Legal practitioners identify relevant issues and assist in providing relevant information to the court. They are also essential in ensuring vulnerable and disadvantaged litigants are properly informed and understand their legal position. Access to legal assistance in the early stages of a dispute can prevent or reduce the escalation of legal problems and reduce cost to the justice system overall. Sustained cuts to the legal assistance sector, including legal aid, community legal centres and Aboriginal and Torres Strait Islander legal services have impacted the ability of a significant proportion of the community to obtain access to specialist family law advice. We consistently advocate for additional funding to the legal assistance sector as essential to improving accessibility to the family law system and reducing cost to clients. We also support the simplification of Part VII of the Family Law Act, including the current ‘legislative pathway’. Critically, amendments should acknowledge diversity in family structures to enable the Act to apply consistently to all children, irrespective of their family structure. The Society suggested consideration of the proposal set out by Professor Richard Chisholm in ‘Rewriting Part VII of the Family Law Act: A modest proposal’. 1 This proposal removes any link between the presumption of parental responsibility and the need for the court to consider a particular care arrangement. Provisions around parenting should not prioritise or favour any particular parenting arrangement, as is currently the case. As noted by Professor Chisholm, “the paramount consideration principle logically requires that the weight to be given to any considerations depends on their importance for the child in the particular consideration. Giving artificial weight or preference to any particular outcome involves a departure from that fundamental principle.” Similarly, QLS members have expressed the view that presumptions in relation to parental responsibility unreasonably fetter the discretion of the court. Parental responsibility should be a matter for the court to determine in the circumstances of each case, guided by the paramount consideration principle. In some circumstances, ongoing conflict over decision-making in the exercise of equal shared parental responsibility may be more harmful to a child than one parent exercising sole parental responsibility. Further, as noted in the issues paper, the presumption of equal shared parental responsibility has been widely misunderstood as a requirement that children should spend equal amounts of time with each parent.