Justice John Faulks, Deputy Chief Justice, Family Court of Australia, addressed the Shared Parenting Council on the experience with less adversarial trials since recent changes to the Family Law Act.
Amendments to the Family Law Act
Justice Faulks mentioned that the Family Law Act has been amended about a thousand times since it was passed about 30 years ago. Most of these amendments have come about through amendments to other Acts which impact on the Family Law Act.
The new structure for dealing with family law cases
Justice Faulks outlined the new structure for dealing with family law cases. There are three stages, namely, (1) an initial stage where facts are outlined and positions stated (LAT stage), (2) the provision of documentation, and (3) final judgements.
Effect of the new system on the number of judgements
There has been a very significant fall in the number of judgements required in both the Family Law Court and the Federal Magistrates Court since the recent amendments.
It was noted that the Government now provides duty lawyers in all 50 registries throughout Australia.
"The best interests of the child"
Justice Faulks pointed out that the Family Court is primarily concerned with making judgments which are in "the best interests of the child". Since the recent amendments to the Act, a different pathway may now be pursued in arriving at the determination of those best interests, but the destination arrived at may not necessarily be different from that arrived at under the previous arrangements.
Equal shared parental responsibility
The fundamental presumption in the new Family Law Act is that after separation there will be equal shared parental responsibility between the parents. Relocation and family violence are significant issues in some cases.
"Primary considerations" and "additional considerations"
The new Act stipulates "primary considerations" and "additional considerations" in determining the best interests of the child. The Family Court delivers judgements in only a small fraction of the total number of cases of divorce or separation.
Justice Faulks said that the concept of "meaningful relationship" referred to in the new Family Law Act is not defined. Such definition as there is is circular, but a meaningful relationship need not necessarily be an equal one. He remarked that courts cannot create meaningful relationships, and that only the people concerned can do that.
Attention is now being paid to the desirability of judges (in appropriate cases) speaking to the children ? although there are some differences of opinion in the Court on the extent that this should be required.
Under the new child responsive model operated by the Court, everything said to a "family consultant" will be reportable.
Under the family law system, safety and natural justice are both important considerations, and may need to some extent to be balanced against each other. The courts are concerned about both false allegations and false denials, and there is a Family Court strategy in relation to this.
The Family Court's Magellan Project, which deals with cases where there are allegations of violence or sexual abuse, has involved close collaboration between Commonwealth and State Governments. The courts are assisted by an independent legal officer. Proceedings follow a dedicated pathway. The system has been effective in bringing about settlements, while at the same time reassuring women. The courts have no power to carry out their own investigations as such, and people seeking investigations must raise the issue themselves.
In dealing with relocation cases, the Court needs to take into account the importance of maintaining meaningful relationships between the parents and child and providing for shared parenting time. In making decisions about such questions to court, specific evidence is often essential.
Justice Faulks said that in a recently reported relocation case he had made the point that the Family Law Act does not recognise happiness of parents as being a determining criterion in relocation cases.
See attached commentary on Justice Faulks' well-reasoned dissenting opinion in a Full Court 2007 judgement in the case of Taylor versus Barker.
Justice Faulks saidThere is no "happiness principle".
Self represented litigants
Justice Faulks made particular reference to the role of self represented litigants in the Family Court process. He mentioned that he had been substantially involved in an earlier project in the Family Court designed to assist self represented litigants, and retained an interest in this area. He remarked that "adversarial" and "inquisitional" approaches in the Court are beginning to converge.
The judge remarked that there are fairly homogeneous views in the Australian family law system about the proportions in which property should be divided. The main issues tend to be about what it is that needs to be divided.
The subject of perjury in family court proceedings was raised. The judge's response was that perjury is not a matter that the Family Court can deal with in its own right, and that these matters must be dealt with in a criminal court.
The success of the new system
Research has been/ is being carried out by Jennifer Macintosh et al on the consequences of shared parenting time arrangements. The Family Court has commenced recording the results which have been achieved in relation to children as a result of judgments made under new rules. This recording of results has been under way for twelve months, and there are 50 registries providing input. The results will be released soon.
The judge mentioned that the AIFS has set out the criteria on which a judgement as to whether the new family law system has been "successful" should be made. Some of the information for the study will be obtained by interview and some by questionnaire. The informants for the study are a statistically valid group of people.
The judge said that he was pleased to have had the opportunity to talk to the Shared Parenting Council.
Policy Adviser LFAA
ACT Director SPCA
18 June 2008