It’s broken so let’s fix it – The Australian Family Law System

“The Australian family law system is bloody awesome”
Said no one ever.

In fact, in 2017 former Chief Justice Diana Bryant said “I feel that the (Family Courts) system is letting the people down” and former Attorney-General, George Brandis agreed noting that “broad consensus (is) that the system is now in many ways dysfunctional and a comprehensive overhaul is needed”.

So what is the system?

Our family law system is underpinned by the principles in our Family Law Act 1975.

The Family Law Act 1975 is the main law on matters involving divorce, property settlement, maintenance and parenting arrangements following the end of a marriage or de facto relationship. The courts that exercise the jurisdiction under the Family Law Act are the Family Court of Australia and the Federal Circuit Court of Australia.

The system is supposedly designed to encourage separating couples to negotiate their own settlement, and where they are unable to, they can refer their matter to the Courts for judicial determination.

Judges are empowered to make decisions about property and parenting matters. For property matters, they are guided by a four step process which we explain here.

For parenting matters, their scope is far reaching, and goes beyond just determining who children should live with. They can make decisions about travel, relocation and education. They can also decide whether a child should undergo a medical procedure, or have a relationship with a person who has been accused of child abuse, family violence or neglect. 

What all this means is that a Judge decides what is best and applies a legal solution. And there will always be at least one party (usually both), disgruntled or even devastated by the outcome. There are no winners.

In response, we have seen the rise of family lawyers who espouse to “do things differently” by bucking tradition, advocating for alternatives and embracing a collaborative approach.

When lawyers can really profit from the dysfunctional system, especially those who bill by the hour, why are some lawyers rejecting it? While empathy and concern for the needs of separating families who get tied up in the system is one factor, another is that family lawyers at the front line have had enough. Levels of burnout, depression and anxiety are sky high and many experience disillusionment and loss of purpose.

Consequently, many committed groups of lawyers (both litigators and those that favour out of court approaches) are striving towards a better system, but my feeling is if we expect the Government/lawmakers/judiciary and the like to fix it, we shouldn’t expect very much.

I don’t know all the answers, but focussing on the problem has never really been my bag. So here are my thoughts:

In Australia, we have freedom and we have choice. We have resources to disseminate information. Almost anyone these days can get on their soap box (ie social media platform) and advocate for change, criticise, protest or call for reform without persecution.

Just as we have the freedom and choice to advocate for change, most people in the midst of separation and divorce, also have freedom and choice in varying degrees as to how they engage with the family law system. They can freely choose to separate. They can freely choose to be cooperative instead of combative. They can freely choose to listen to understand or listen to respond. They can freely choose to give instead of take. They can freely choose to be kind.

And this is where lawyers who want to effect real change can make a difference, because most reasonable people who make choices that have consequences often do so because of information available to them. On Google, social media, news, the general public perception … or from their lawyers. 

How can  lawyers inform people so they make better choices so they don’t end up in the system in the first place? If lawyers educate people that there is another way, a better way to resolve conflict – Surely therein lies the answer?

So to do things really differently, focusing on education is key. And to be clear, educating or advising on family law isn’t simply about making sure separating couples know what their rights and entitlements are or simplifying a complicated legal system, especially when that legal advice is underpinned by the very system many recognise to be problematic.

No, if lawyers truly want to effect change, they need to look at how we approach separating couples and consider their relationship with their former partner. It hasn’t really ended at all, it’s just changed. Does the lawyer’s advice foster trust or suspicion? Kindness or resentment? Co-operation or combat? Needs or wants? Focus on solutions and not problems? Remember, hate doesn’t lead to happiness. Lawyers need to empower separating couples and help them find the tools they need to make the right choices so they may find true peace, balance and harmony after divorce.

Balance Family Law is a non-adversarial, collaborative law firm that really does do things differently.

Perpetua has over a decade experience as a family lawyer, is a trained collaborative lawyer and conflict coach.