A Critique of the 2018 Family Law System Review

The Australian Government’s reforms of the family law system have attracted significant attention and debate. The 2018 discussion paper is a precursor to the final report. It uses the term “family violence” 775 times, while mentioning “shared care” only twice, and making no references at all to “false allegations”.

18 January 2019

Overview

Dr Andrew Lancaster, Director of childsupportaustralia.com, examines key themes in the Family Law System Review. The Australian Government’s discussion paper places substantial emphasis on family violence, while giving comparatively limited attention to other issues raised by parents, including arrangements for ongoing contact with children.

Questions have also been raised about the treatment of public submissions. At the time of writing, many submissions had still not been published, leading to concerns about whether the full range of community perspectives was being represented. The experiences of mothers and fathers affected by family law cases remain an important part of the reform discussion.

Video critique

You can see Dr Lancaster’s critique in the video below. Go to 15:19 of the video for a summary. Also, for discussion of the people responsible, see 20:19.

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Notes and links

The Review of the Family Law System by the Australian Law Reform Commission places a strong emphasis on family violence. This has prompted discussion about whether other areas of reform have received sufficient attention.

This page examines the Commission’s discussion paper and highlights areas where further consideration may be warranted.

You can check out our submissions to the Review here:
https://childsupportaustralia.com/submission-family-law-review/

The Review itself can be found here:
https://www.alrc.gov.au/inquiry/review-of-the-family-law-system/

Some stakeholders have expressed concern about the direction of the discussion paper and its implications for the final report.

Questions have also been raised about the composition of contributors and the extent to which established professional groups influence the policy discussion.

Lawyers, judges, academics, consultants, NGO administrators, lobbyists, and mental health professionals all form part of the broader family law environment. Their roles, perspectives, and incentives influence how reform issues are framed and debated. These dynamics form part of the context for the concerns raised in the correspondence below.

Letter to the Attorney-General

The following correspondence was sent to the Attorney-General outlining concerns about the conduct and scope of the Review.

31 January 2019

Political cost of the Family Law System Review

Dear Attorney General,

The ALRC’s Family Law System Review is not going well. Please refer to this critique, which is starting to be shared across social media:

https://childsupportaustralia.com/family-law-system-review/

The Review might well go down as the most biased and close-minded review in the history of the Australian Government. It’s hard to think of any review that’s been conducted in such a scheming, unprofessional, unprincipled manner.

I can tell you that the reactions among separated parents range from outraged to demoralised.

I realise that the Review is following a narrow Terms of Reference (what’s the excuse for that?) but the level of bias is completely uncalled for.

Community reactions to the final report will not be positive at all. This is with the obvious exception of industry insiders. They benefit from a dysfunctional family law system. And they also appear to be the people responsible for guiding the Review.

Could you tell me when all public submissions will be published, and not just the few which have been hand-selected by the ALRC? When is this likely to happen?

I’ve worked on large reviews of this nature before, and it really should take no time at all to release submissions. We actually produced a detailed summary of submissions for the Australia in the Asian Century white paper in far less time than it’s taking the ALRC to simply show submissions. Ditto for the Carbon Pollution Reduction Scheme.

Please do not refer this correspondence to the ALRC for them to reply. I have no interest in what they have to say at this stage. I’ve asked them about publishing submissions a long time ago. Their response was, in my view, dishonest. And they still haven’t acted.

Hoping that you’ll do something about the conduct of the ALRC before the election and certainly before any final report is released to the public.

Sincerely,

Dr Andrew Lancaster

Response from the Attorney-General’s Department

My notes

This is the response from Christian Porter. The delegate, J Taylor, does not appear to have engaged with the substance of the original email.

A common frustration with public service responses is that they can be formulaic and do not always address the specific issues raised.

The Review continues to be described as “comprehensive”. However, aspects of the report suggest that a number of significant issues remain unaddressed.

The Review, which is nearing completion, still has limited coverage of issues that include:

1. how to better accommodate shared care where appropriate
2. establishing fast, effective interim solutions during protracted court processes where mediation has not worked
3. measures to minimise the harmful effects of dishonesty and false claims of domestic violence
4. how to better allow self-represented litigants to help themselves
5. methods to enable parallel parenting where parents appear to have communication difficulties.

Each of these are significant issues with substantial potential for reform. However, they appear to be only partially addressed, and are not clearly reflected in the Terms of Reference.

Describing the Review as “comprehensive” suggests broad coverage of the system. However, the scope of the current work indicates that further reform and analysis may still be required.

Based on experience reviewing ministerial correspondence, responses can vary in how directly they engage with the issues raised. In this instance, the reply appears to redirect the matter back to the ALRC, despite earlier contact having already been made.

This can result in matters being referred between agencies without clear resolution, limiting the opportunity for substantive engagement.

Here’s the response:

11 February 2019

Dear Dr Lancaster

Thank you for your email to the Attorney-General, the Hon Christian Porter MP, dated 31 January 2019, concerning the review of the family law system by the Australian Law Reform Commission. The Attorney-General has asked me to reply to you on his behalf.

You have expressed your concerns about the conduct of the review and asked for action by the Attorney-General to address these concerns. The ALRC review is the first comprehensive review of the family law system since the Family Law Act 1975 came into operation. The review commenced on 1 October 2017, and will report by 31 March 2019.

The terms of reference for the review are broad and far reaching, focusing on key areas of importance for Australian families. These include ensuring the family law system prioritises the best interests of children; appropriately addresses family violence and child abuse; and supports families, including those with complex needs, to resolve their family law issues quickly and safely, while minimising financial burden.

While the ALRC is within the Attorney-General’s portfolio, it is conducting the review independent of Government. As such, any concerns or questions relating to the process for the review should be forwarded directly to the ALRC. You can access ongoing information about the review, provide any feedback you have about the process and follow its progress at the ALRC website: www.alrc.gov.au/inquiries/family-law-system.

Thank you for taking the time to write about your concerns.

Yours sincerely

J Taylor
Director
Family Law Branch