At the conclusion of 2018, the future of the family law system in Australia was in a state of uncertainty, awaiting the outcome of a number of reforms ranging from Bills before Parliament to a wide-ranging review by the Australian Law Reform Commission. It seems unlikely that a radical overhaul or significant systemic change will result. Rather, the family law system will experience a continuation of incremental adjustments that have been occurring for many years. Thus, the theme that emerges in Australia for 2018 is that overwhelming complexity driven by incremental reforms continues, rather than any overall recasting of the law or underlying systems. In short, this is a time when there are many reformers but insufficient generalised reform.
In this chapter, the complexities of Australia's legal ‘pathway’ for the determination of parenting cases is first examined, together with some recent clarifications from the courts. It will be argued that the ‘pathway’ has reached a level of complexity that places it beyond the understanding of all but the most experienced family lawyers. It therefore also seems to impede movement toward litigation alternatives.
By way of an update, a summary of the two most significant specific reforms that have taken place in 2018 will be provided to demonstrate the wide array of reforms that continue to be pursued.
It is argued that whilst there has been much reform, the complexities of family law, and particularly the Australian legislation, are an under-acknowledged impediment to a functional family law system.
THE PROBLEM OF COMPLEXITY IN PARENTING LAWS
Like many legal systems, Australia's parenting provisions rest upon the fundamental concept of the ‘best interests’ of the child. This is expressed in the legislation as the ‘paramount consideration’. When Australia's Family Law Act commenced in 1975, the whole of the Part dealing with parenting was less than 2,700 words long. The key concept was then expressed in short compass:
64. (1) In proceedings with respect to the custody or guardianship of, or access to, a child of a marriage-
(a) the court shall regard the welfare of the child as the paramount consideration;