Family law is a constantly evolving area, and in recent times has been the subject of intense interest and attention from politicians and the media. As we embark on another year, now is an opportune time to consider what may and may not be on the family law agenda in 2020.
Family lawyers have been inundated with recommendations of inquiries, commissions and reviews, in recent years. Following on from the comprehensive Australian Law Reform Commission Report Inquiry into the Family Law System in 2019, a further Committee has now been established by Federal Parliament to report on Australia's Family Law System. Although there were several calls for a Royal Commission to be conducted into the family law system (largely from One Nation Senator Pauline Hansen) the Government instead elected to appoint a Joint Select Committee in September 2019 with Ms Hansen as the Deputy Chair.
The Committee has now received submissions from the public, and has been tasked with inquiring and reporting on various aspects of the family law system, including reforms that may be needed to the current structure of the Family Court and the Federal Circuit Court as well as mechanisms to improve the timely, efficient and effective resolution of property disputes in family law.
The Committee will shortly hold public hearings with its report expected to be made available throughout 2020. The recommendations for reform will be keenly awaited by family law professionals, however whether any of the reforms are then actually implemented by the Government is to be seen. Given that none of the recommendations from the comprehensive Australian Law Reform Commission Report have been implemented to date, the potential for wide-scale reform of the system may be remote.
Harmonisation of Rules
Presently, there are two Federal Courts in Australia that deal with family law matters, the Family Court (that addresses the more complex and lengthy parenting and property cases) and the Federal Circuit Court. Although both Courts operate under the same legislative jurisdiction of the Family Law Act, they each have separate rules, forms and procedures. This duplication of often disparate rules causes confusion, uncertainty and inefficiencies.
Acknowledging the criticisms of the separate processes, a working group has recently been established to develop a consistent approach to case management in both Courts. The harmonisation of rules, processes and procedures between the two Courts will be a welcome reform with hopefully the first draft set of Rules received from the working group throughout 2020.
Implementation of Pilot Projects
A number of pilot projects will continue to be trialled at various registries throughout Australia in 2020. These include the Small Claims Property Project, which it is hoped will be a simpler and more cost-effective process to help separating couples divide their property assets.
The Small Claims Property Pilot will run for two years in Brisbane, Parramatta, Adelaide and Melbourne and will provide a streamlined court service to couples with property pools under $500,000.
The project is funded under the Women's Economic Security Package and aims to ensure families do not exhaust their limited assets on legal expenses. The imperative for women to access property settlements in an affordable and timely manner was a key recommendation of the "Small Pools Large Battles" Report undertaken by the Women's Legal Service Victoria with the assistance of Lander & Rogers Lawyers. The Pilot project will allocate matters to Judges who will be able to adjudicate the matter using a short form process which may include dealing with the matter without a hearing.
It is a present shortcoming of the system that all property matters are dealt with in the same manner and using the same processes irrespective of whether the asset pool is $100,000 or $1,000,000. This one size fits all approach adds to the heavy burden of the Courts and exacerbates the current significant delays faced by litigants.
In addition, a financial applications pilot program has been continued in the Newcastle Registry to better case manage and progress property applications and will now be extended to the Sydney registry. The program enables files seeking property applications only to be pro-actively managed by a Registrar from the time of filing. By removing judicial intervention, unless absolutely necessary, the pilot has allowed Judges to hear only the most intractable of disputes with over 69% of cases in the pilot programme resolving without the need for judicial involvement.
Superannuation Splitting Reforms
The present legislation and rules regarding the splitting of superannuation are complex and present particular challenges to self-represented litigants. In addition, each superannuation fund has its own requirements in relation to the wording and phrasing of orders, and the steps to be undertaken before a superannuation split can be ordered. Acknowledging this complexity, the need for reform to better enable self-represented litigants, and litigants with small asset pools is evident. In cases where the parties only own superannuation, it is not uncommon for a party to walk away from a share of superannuation due to the challenges of navigating and understanding the process.
A number of superannuation funds have announced that they are developing a streamlined and simplified process through the development of a consistent form for court orders that can be widely used. It is hoped that over time this simplification extends to all funds to enable more parties, and in particular women, to claim a fair share of superannuation following the breakdown of a relationship
Two Courts or one?
The need for structural reform of the family law system to reduce delays for separating families is well accepted. The Governments' present response is an intention to amalgamate the Federal Circuit Court and the Family Court to be brought together as the new Federal Circuit and Family Court of Australia (FCFC). In December 2019, the Government introduced legislation to amalgamate the Courts with the aim of streamlining processes and procedures and ensuring one entry point to the family law system for separating families. The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee which is due to report on or before the 20th November 2020.
It is not yet known whether or not the intended amalgamation will proceed and whether the Bill has the necessary political support required.
There is only one current family law case pending before the High Court, specifically Hsiao v Fazarri — being a case in which the Court will consider the nature and impact of a Deed of Gift made between the parties during the relationship.
Moving forward, some of the key trends that we anticipate in 2020 include the following:
- A continued emphasis on mediation and alternate dispute resolution processes to resolve disputes at the earliest opportunity for clients;
- An expansion in the use of arbitration as an alternative to mediation and litigation;
- The offering of judicial mediations (being mediations conducted by Judges) as an alternate to private mediations and arbitration.
- Greater case management and triaging of both parenting and property cases by Registrars, at first instance, to alleviate the workload of Judges.
Family law has been a fast evolving and ever-changing area of law in recent years and that trend is certainly expected to continue in 2020. Family lawyers can continue to expect significant media commentary and analysis of the family law system, particularly once the public hearings for the Joint Select Committee commence. It will be fascinating to learn of the key recommendations and areas of reform that arise from the Committee's work.
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