Review of the Family Law System
In previous blog posts we have looked at some of the problems the family law system and the Family Court faces. Sarah Henderson MP, the Chair of the Standing Committee on Social and Legal Policy, agrees that these problems exist. Her committee is currently undertaking an inquiry into the family law system, specifically looking to protect those affected by family violence.
In an interview with ABC Radio, Ms Henderson noted a number of issues the inquiry has uncovered and will be hoping to recommend remedies to in its final report to Parliament. There is recent pessimism, however, regarding this inquiry as the Attorney-General has provided advice that it would be inappropriate for the Chief Justice of the Family Court Diana Bryant, and Chief Judge of the Federal Circuit Court John Pascoe to appear before the Standing Committee.
The separation of powers enshrined in the Constitution ensures judicial independence from Parliament. The Attorney-General asserts the effect of making the Chief Justice and Chief Judge appear before a Parliamentary Inquiry would be to make the judiciary subordinate to Parliament and therefore not independent. The inquiry has accepted written submissions from the Family Court and Federal Circuit Court however will not have the ability to question the submissions put before it.
While this inquiry is undoubtedly important and ground-breaking in many respects, the separation of powers is the foundation of our legal system and any risk to it should be avoided.
The committee deputy chair Sharon Claydon MP and child protection advocates have said that the inability to question the Chief Justice and Chief Judge will hinder the inquiry’s ability to make recommendations and makes the inquiry a ‘waste of time’.
Ms Henderson’s comments on ABC Radio, however, are promising. Speaking from Alice Springs where the inquiry was collecting evidence, Ms Henderson made note of a number of issues the inquiry has identified. Of primary concern is her impression that the Family Court seems to be concerned about the rights of parents to unsupervised visitation ahead of the safety of children. While the Family Law Act states that children’s best interests are to be the paramount consideration in making parenting orders (s 60CA), it seems that Ms Henderson’s observation is that this does not occur in practice.
Ms Henderson also raises concerns about the cost of family law proceedings and that this is a significant bar to people accessing justice. Additionally, she notes that the inquiry has been told of instances whereby people abuse the processes of the Family Court, causing further victimisation.
It appears that the inquiry is acknowledging some of the problems the family law system faces. While not being ideal, the inquiry should still be able to deliver recommendations without oral testimony from the Chief Justice and Chief Judge, even if these are somewhat impaired by their lack of testimony.
The Australian Law Reform Commission, according to Sarah Henderson MP, is preparing to launch its own inquiry into the family law system which may help to remedy some of the shortcomings of the Standing Committee’s inquiry.
The information posted on this blog represents our opinion and should not be taken as legal advice.