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Should the Family Law Courts be abolished?

Late last month we mentioned that the Australian Law Reform Commission (the ALRC) had released its review into the Family Law system.

The ALRC was asked by the Government to review the Family Law system – the first review since the Family Court was established in 1975 – and its final report contained 60 recommendations addressing all aspects of the system from property division changes, family violence support and access to the Courts.

But perhaps one of the most startling recommendations was that the Federal Government consider abolishing the existing federal Family Courts and instead establish Courts in each of the states and territories.

It comes down to the constitutional divide of powers between the Commonwealth and the different states and territories; under the Constitution the Commonwealth has jurisdiction over family law disputes but the states and territories have jurisdiction over criminal matters (such as offences in relation to family violence) and laws in relation to the protection of children.

Over the years – and increasingly as awareness of family violence issues has risen – there have been questions asked about the sharing of information between federal agencies and those in the different states and territories. We, along with our colleagues in this field, often speak of those who “fall between the cracks”.

In the report the ALRC said “There have been growing concerns about the separation of the federal family law and state and territory child protection and family violence systems, and the risks to children’s safety associated with this situation”. The recommendation is clearly aimed at “closing the cracks”.

However, rather blithely the ALRC said that the Federal Government would fund the family law courts in the states and territories and make nationally consistent laws. At present most states and territories have opted in to the federal Family Law system – except for Western Australia. Largely this has worked well – with most, but definitely not all, provisions in the federal system mirrored in the WA system. But, there are in numerous other examples of the difficulties in getting all of the states and territories to agree to national systems so this seems to be one recommendation that would take a lot to implement.

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