Law Reform Commission’s inquiry into the family law system

On behalf of the Federal Government, Attorney-General Senator George Brandis has commissioned the Australian Law Reform Commission to undertake a review of Australia’s family law system and the Family Law Act 1975. This review will attempt to address the ongoing issues within the family law system.

The review’s Terms of Reference are broad and wide-ranging. In this respect, the review is looking at all aspects of family law and not merely addressing the issues reported in the media. This broad-brush approach to family law will hopefully review the whole family law system and provide recommendations that will be implemented by the Federal Government.

The terms of reference mention a number of the areas we have discussed on this blog including child welfare, cost and delay, and issues of evidence. Of note, however, is the government’s intent to make family law simple and more accessible.

Recent data released from a questionnaire (which admittedly has a selection bias) suggests that of those who responded, 36% were self-represented in their family law matter. Despite any selection bias which might bring that percentage down, this translates to over 1900 self-represented parties. In discreet matters, this may not cause too many issues but where matters are more complex, the lack of clarity in family law becomes an issue.

The Family Law Act 1975, when downloaded from the Federal Register of Legislation, is 793 pages long. To expect self-represented parties to wade through this volume of legislation as well as other legislation and relevant case law is fanciful. Being represented by a person who has experience in the family law system is always going to be advantageous. This advantage and the expertise available is lost to self-represented litigants. The family law system has gotten so complex that it is almost impossible for people without any expertise or experience to interpret the law. There is a legal doctrine that states ignorantia juris non excusat (ignorance of the law excuses not) but how can we expect people to understand such a complex regime?

If a result of the family law review is to make the law less complex and provide better access to the court system and counsellors, then hopefully there will be less delay for all litigants, both represented and self-represented.

Terms of Reference:
Media Release:

The information posted on this blog represents our opinion and should not be taken as legal advice.