The Public Sector Informant: No end in sight to Family Law Act woes

It is doubtful if any area of public policy has had this degree of scrutiny in the four decades since the original legislation was introduced by the Whitlam government. It is no exaggeration to say that the Family Law Act 1975 has clearly been one of the most controversial and contentious pieces of Australian legislation and subject to numerous changes and amendments since its enactment.

Coming into effect in January 1976, two months after the dismissal of the Whitlam government, the act had a profound impact. It is best known for two far-reaching reforms that changed the approach to marriage breakdown in Australia: the introduction of no-fault divorce and the establishment of a specialist multi-disciplinary court for the resolution of family disputes, the Family Court of Australia.

As consultation conducted by the Senate Standing Committee on Constitutional and Legal Affairs in the early 1970s revealed, the community considered that the previous provisions were costly and protracted, and also involved indignity and humiliation to the parties because of the court's inquiry into the breakdown of marriage. Consequently, all inquiries as to fault were removed from the legislation.

Key policy strands underpinning the Act, in addition to a philosophy of no fault, include promoting the best interests of the child; preserving the institution of marriage; promoting reconciliation; and protecting the notion of the family. The reverberations have continued ever since.

It is disingenuous in the extreme for the Prime Minister to caution against politicising the issue when the issue has been politicised from day one. Many of the amendments have reflected the political climate of the times, and a quick glance suggests a pattern. Those sponsored by the Australian Labor Party have tended to focus on the relevance of non-financial contribution of the stay-at-home mother in property matters while those initiated by the Coalition have furthered the wishes of fathers' groups by extending the rights and responsibilities in negotiating parenting arrangements.

Under the Howard government in 2006, amendments changed the way matters involving children are dealt with. These included: a progression towards compulsory mediation (before Court proceedings can be filed, in an effort to ensure matters do not reach litigation); greater examination of issues involving family violence, child abuse or neglect; greater emphasis being placed on a child's family and social connections; a presumption that parents have equal parental responsibility - not equal parenting time; and encouraging both parents to remain meaningfully involved in their children's lives following separation, provided there is no risk of violence or abuse.

A decade ago, research by the Australian Institute of Family Studies revealed that a large proportion of parenting cases dealt with by the family law courts involved allegations of violence and abuse. Allegations of family violence, child abuse or both were made in over 57 per cent of litigated cases, with the figure rising to over 72 per cent of those cases that were judicially determined.

As the Australian Law Reform Commission noted in 2010, the Family Law Act in its earliest form did not deal specifically with family violence, except as a ground for an injunction. The Family Court, at its outset, was therefore not conceptually set up as a court that would deal with issues of family violence.

Amendments in 2012 introduced under the then Labor government were intended to place family violence at the centre of parenting cases. Amendments, known as the Family Violence Act, related to the manner in which courts exercising jurisdiction under the Act should deal with cases involving family violence and child abuse. The changes include expanding the definitions of family violence and child abuse. Importantly, they also contain provisions prioritising children's safety over other considerations including promoting a meaningful relationship with both parents. Instead, the courts' attention is focused on issues relating to safety and the legislation encourages the reporting of family violence and abuse. Significantly, provisions which were seen to discourage disclosure of violence and abuse have been repealed.

Under the Family Law Act judges now have two primary considerations when assessing what is in the best interests of the child: the benefit to children of having a meaningful relationship with both of their parents; and the need to protect them from physical or psychological harm, including being subjected or exposed to violence. Furthermore, where there is a clash between these two interests, the safety of children is to be prioritised over the benefits of a meaningful relationship with both parents.

In the latest review just announced, to be chaired by conservative Liberal MP, Kevin Andrews, an important dynamic will come into play with the presence of Senator Pauline Hanson whose One Nation party platform proposes that the Family Court be abolished and replaced with a family tribunal made up of people from "mainstream Australia." Under her plan, respected members of local community, social and health groups would be invited to participate.

The proposal has already drawn Family Court Chief Justice Diana Bryant into the debate, saying that while she can see some value in putting minor matters before a tribunal, the One Nation policy is simplistic, especially as abolishing the court would raise constitutional issues. In a speech in 2015 the Chief Justice commended the government's $100 million women's safety package aimed at addressing family violence but voiced concern that the crucial role of the courts (and the corresponding necessity of resourcing them properly) has not to date been recognised as part of addressing family violence.

The most recent review, chaired by then MP now senator, Sarah Henderson, raised a number of issues still unaddressed, regarding the current family law system's approach to family violence. These included: the difficulties posed by an adversarial family law system; the existence of inappropriate responses to reports of family violence; that legal fees and complex court procedures which reduce the accessibility of the family law system; and the complexity in navigating state, territory, and federal jurisdictions.

It is doubtful that the controversies will abate any time soon.