Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

The Family Law Act was introduced 40 years ago. There have been some amendments, the last being in 2006 and 2012. Our laws should be dynamic and should be reviewed and revised as needed. The Family Law Act is now well and truly overdue for reshaping.

Professor Richard Chisholm AM, a retired Family Court judge who knows the law very well, has written articles suggesting reform to the Family Law Act. Current sitting judges have also published articles bemoaning the current state of our law. Judge Grant Riethmuller in his recent article on deciding parenting cases under part VII in ‘The 42 easy steps for deciding straightforward parenting cases under Part VII of the Family Law Act 1975’ describes the current provisions for determining parenting matters as a complex and almost impenetrable legislative scheme. A former judge of the Family Court, Justice Warnick, has described the same provisions as a 'dilemma of labyrinthine complexity'. If our judges and former judges or academics find these provisions complex, how can nonlawyers possibly understand how they would apply to their own parenting disputes? Professor Chisholm suggests that parties may well be settling parenting disputes in the shadow of a misunderstood law.

A clearer and simpler legislative pathway would allow more matters to be resolved without resorting to the courts. Those matters that did need the courts' assistance would be likely to be resolved more quickly, because they would take up less valuable court time. The Productivity Commission inquiry report Access to justice arrangements has identified that the complexity of the system and the law which underpins it is a barrier that could inhibit access to justice. There are many barriers to access to justice in the family law system. Reform could assist early resolution of property settlements where the asset pool is in the low-to-medium range.

The Women's Legal Service Victoria recently published a report Stepping stones: legal barriers to economic equality after family violence. One of the recommendations in the report is to amend the Family Law Act to include a requirement for an early resolution process in small-claim property matters. The report suggests that the federal government introduces a unique process for small-claim property matters to be dealt with quickly and fairly. Ensuring that property settlements are accessible after family breakdown will improve economic equality after separation. Where family violence is present, it is often impossible for matters to be resolved without resort to the courts. It is imperative that families are able to access our court system to have their matters dealt with in a way that is responsive to the complexities that family violence brings and that will ensure a quick and fair resolution. As the Chief Justice of the Family Court said this week, family law litigation is like no other litigation; it is dynamic litigation not static. The orders that are made are orders that operate in the present and future. Every time there is an interaction—say, a contact at the weekend or alternate weekend or whatever it is—there is an opportunity for something to happen because they are human relationships.

As politicians and legislators, we need to remember the dynamic nature of family law and the unique problems that our family law system must deal with. Good governments ensure that legislation meets the needs of the families who use the family law system.