PROPOSED CHANGES to family law arrangements, including a new families tribunal, are aimed at making the system more user-friendly. But the Law Council of Australia argues they will be a waste of resources and will not improve the situation for the thousands of families with children that separate each year.
A radical overhaul of the family law system, which could cost hundreds of millions of dollars, followed a parliamentary inquiry that recommended a families tribunal be set up to operate outside the Family Court system and deal with access to children. The proposed system was intended to alter the way children’s issues were handled, and to make the system less legalistic.
Attorney-General Philip Ruddock has reportedly urged the Government to adopt the proposed tribunal.
A revamp of the controversial child support system was also pushed before Cabinet by the Minister for Children, Larry Anthony. In practice, the proposal would revise the formula for striking child support payments. While currently a percentage of the income of the parent who is paying for the child is taken, a new formula would be developed for determining the cost of raising children.
The first phase of the new system would see an information service offered at Medicare offices. People would be referred to mediation and those whose issues could not be settled would then be sent to the tribunal.
But this one-stop shop idea has been condemned by the Law Council, which argued the Government was focusing on the wrong end of the system, and that family lawyers were instrumental in helping separating families reach a resolution.
“Lawyers give objective advice, they help create proper expectations and they help keep most people out of the court. This is what they’re paid to do,” said Law Council president Bob Gotterson.
Around 25,000 Australian families with children separate each year but 98 per cent of those don’t have a court hearing, according to Law Council figures. Instead they reach agreement, mostly with the help of family lawyers, through negotiation, mediation and conciliation.
“As well as facilitating settlement, family lawyers help to equal the power imbalance that often exists between spouses, so that a weaker party is not disadvantaged,” Gotterson said.
A “third court”, as the Law Council has labelled the tribunal, may leave families with litigation in three different tribunals. A family might have their property dispute before the Family Court, for example, and also a child support dispute before the Federal Magistrates Court, as well as parenting matters before the Families Tribunal — a prospect “fraught with danger”, said Gotterson.
“This proposed tribunal is untested anywhere in the world. If we are to have a tribunal that deprives people of their fundamental legal rights, it should be piloted before being introduced,” he said.