Holistic change needed to fix ‘broken’ family law system

By Jerome Doraisamy|22 September 2019

Change cannot occur unless there is a national discussion about the issues facing family law, the Law Council of Australia has argued, pledging support for the newly announced parliamentary inquiry.

In a statement late last week, LCA president Arthur Moses SC said that family law is one of the issues raised most often in parliamentarians’ offices around the country and that underfunding and under-resourcing by successive governments have resulted in case backlogs and long delays for families.

In short, “it has been broken for some time”, he submitted.

“Countless reports have set out technical recommendations for parts of the system. Yet nothing has changed. Why? Because policymakers have not stepped back to see the forest, not the trees. We all know too well the problems. We need to get agreement among our politicians on the solutions,” he said.

“Bandaid solutions and tinkering around the edges is no longer enough. There must be holistic change.”

His comments follow criticism from family lawyers around the country about the new inquiry, as well as Victoria’s announcement of more funding to support those affected by family violence.

Mr Moses said: “The Australian Law Reform Commission has recently undertaken invaluable work on the family law system. But there were ideas raised late in the course of its inquiry – important ideas around structural change – that have not had the benefit of full public consultation. These ideas – and others such as that proposed this week by the Women’s Legal Service of Queensland – have merit and must be discussed to build public support for any changes.”

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Meaningful, substantive change will not occur unless the federal parliament leads a national discussion to address these issues, which is why LCA welcomes the announcement of a joint parliamentary inquiry, Mr Moses said.

“There is an understandable weariness and wariness from those who work tirelessly in this space about the utility of another inquiry. I acknowledge the tremendous courage of victims of family violence in sharing their experience and giving evidence, and I appreciate this takes a significant toll,” he ceded.

“We owe it to them to listen to their experiences. Not to let this become just another report. And we owe it to them to ensure this inquiry provides the solution. No more excuses, no more finger-pointing. A real discussion followed by a real commitment by our parliament to progress, not just talk about, meaningful change.”

This particular joint parliamentary inquiry, Mr Moses mused, can be the “catalyst to drive the holistic change we all agree is so desperately needed”.

“A parliamentary inquiry has a greater capacity than a royal commission to focus on driving solutions, not just air problems. This inquiry must involve the whole community – not just politicians, lawyers, accountants and bureaucrats,” he said.

“It must be honest. If there are concerns of bias in the system, these should be put to proof. Myths and misconceptions that plague the system should be dispelled and legitimate concerns resolved. If there is any concern of inappropriate conduct or charging by the legal profession, we will answer it.

“And it must above all be respectful. Words used in these critical discussions must be carefully chosen to ensure victims of family violence are empowered and safe, not discouraged or intimidated from speaking out.”

Lawyers, too, have a role to play, Mr Moses espoused.

“As lawyers, we owe duties to the courts and the administration of justice. We cannot in good conscience pass up any opportunity for a national conversation about policies that directly impact families and children. We are called to inform it and participate,” he argued.

Further, there is action that the federal government must take urgently prior to any recommendations being handed down.

“The government could today increase legal assistance funding to help the most vulnerable members of our community access adequate representation in family law proceedings. Family violence services need an urgent funding injection so those in need – generally women escaping violence – can be safe.”

Holistic change needed to fix ‘broken’ family law system
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