Family Law Developments –What are the likely trends in family law for 2019?
December 19, 2018
We have asked our expert panel here at Paterson & Dowding to report on legal developments in family law for the coming year.
Lucy Thomas is a Director and Accredited Family Law Specialist who was recently again named a Pre-eminent Lawyer in Parenting, Custody and Children’s Matters and as a Recommended Family & Divorce Lawyer in the Doyle’s Guide for 2018. She has developed a practice which embraces mediation and alternative dispute resolution, as well as being a highly regarded advocate in Family Court litigation.
Craig Taylor is a Director and Accredited Family Law Specialist who has practised as a family lawyer since the early 1990s, taking instructions in all property related matters ranging from small estates to large, complex financial disputes involving family trusts, trading companies, businesses and superannuation. Craig was also ranked this year as a Recommended Family & Divorce Lawyer in the Doyle’s Guide.
Here’s what Lucy and Craig have to say about significant and emerging issues in family law in Western Australia.
What are likely to be the most significant legislative and regulatory developments in family law in 2019?
Craig: We are hoping that changes will finally be made to allow de facto couples in WA to split their superannuation in the event of a separation. Unlike the rest of Australia, this option is currently not available in WA as the result of a long standing impasse between the State and Federal governments. The Federal Attorney-General has recently agreed to make changes to the Family Law Act 1975 (WA) via a limited referral of power to enable the Family Court of WA to determine a division of superannuation interests held by de facto couples in financial proceedings. We therefore hope that amendments to the Family Law Act will indeed be made in 2019 even though we may have a change of government at the next Federal election.
Lucy: The other major development is the proposed review of the family law system by the Australian Law Reform Commission. Although the majority of the changes proposed by the Federal government primarily affect courts in the other states and territories, there are a number of proposals that will have an effect here in WA. There has not been a comprehensive review of the Family Law Act since its commencement in 1975 and it will be important to ensure that we focus on collaboration, coordination and integration between the Court and family law services, particularly in relation to family violence and child protection.
What wider community issues do you think are relevant to the practice of family law in WA in 2019?
Lucy: I am increasingly concerned about recent reports that WA has become Australia’s “Ice State” with wastewater tests showing that we have the highest level of meth-amphetamine drug use in the country. The problem appears to be of particular concern in regional centres. Drug addiction problems can have a huge impact on families, and anecdotally it appears that drug abuse issues are becoming common in Family Court proceedings. As an Independent Children’s Lawyer I am increasingly having to request orders for random drug testing to ensure that children are protected from physical and psychological harm as a result of a parent’s illicit drug use.
Craig: I worry that unless international markets start to change direction, we are going to see more West Australian home owners missing their mortgage payments. This has an obvious impact on family law financial disputes and increases the complexity of cases where the matrimonial home is subject to a notice from the bank that the home loan is in arrears. Clients will need to seek advice and take action as quickly as possible if they are in the process of separating and at the same time having difficulty meeting their mortgage repayments. There will also be a flow-on effect with the Court having to deal with an increasing number of interim applications relating to the sale of the former matrimonial home.
What are likely to be the most important changes to family law practice in the future, and why?
Craig: I think we are going to see a continuation of the trend towards matters being resolved by mediation and agreement, rather than by the Court. If the economy continues to deflate, we may also see a further increase in the number of self-represented litigants. Self-represented litigants typically use up more of the Court’s resources as they require assistance with court procedure, access to support services, Court etiquette and the preparation of documents. The practice of family law needs to reflect these trends by looking closer at mediation and collaborative law as options to resolve disputes.
Lucy: Amendments made to the Family Law Rules in 2016 mean that we are slowly moving towards a more comprehensive approach to family law arbitration for financial matters. With the Family Court under continued pressure to deal with the demands of an increasing and complex case load, arbitration offers a simpler and cheaper option for the resolution of disputes. Parties can refer all or part of a dispute to an arbitrator for a determination, either by a private agreement or by referral from the Court. Family Court litigation should always be an option of last resort as it can lead to high levels of stress and costs. Arbitration has a number of advantages including that it is private and confidential, timely, allows parties to have a say in the process and provides for a more prompt decision.
 You can view the Terms of Reference at https://www.alrc.gov.au/inquiries/family-law-system/terms-reference.