Ahoy. Navigation assistance
Tuesday, May 1, 2018
Justinian in ALRC, Family law, Peach Melba

Where are we with the ALRC inquiry into family law? ... Issues paper ... Access to justice ... Advocacy and support services ... Therapeutic justice ... Exploration of new modes of service delivery ... Peach Melba on the case 

An unrecognisable 1970s family

Families, and the justice system, are almost unrecognisable from how things were in the 1970s. 

There is a greater understanding of the benefits of alternative dispute resolution, and the complex needs of clients from culturally and linguistically diverse backgrounds or with disabilities. 

There is also increased recognition that family violence can manifest as coercion or control, by stalking, unreasonably withholding financial support, and preventing a family member from maintaining contact with friends and relatives.

Recognising that there has not been a generalised review of the Family Law Act 1975 since its commencement in 1976, Attorney General George Brandis last year directed the Australian Law Reform Commission to consider what reforms to the family law system as a whole are necessary or desirable.  

The focus of the ALRC's inquiry is on the experience of individual clients in the family law system. Its terms of reference are directed at how the Act can meet the contemporary needs of families, maintain public understanding and confidence in the family law system, encourage the resolution of disputes efficiently, inexpensively and with finality, and place the needs of children first. 

The commission is also to consider reforms in relation to family violence and child abuse, the protection of vulnerable witnesses, and equipping decision-makers to assess the best interests of children and the children's own views on the family dispute.  

Perhaps the most significant element of the inquiry is the examination "whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children". 

The ALRC's report is due in March 2019. It released its first Issues Paper on March 14. One of the issues identified in the paper is the financial burden of access to legal services, and how difficult it is for children and individuals with language or literacy barriers to access clear information about family law. 

The issues paper identifies programs in the family law system that seek to empower clients by supporting them through the stressful experience of going to court. The Family Advocacy and Support Service (FASS), currently operating as a pilot program in 23 family law registries, teams clients with duty lawyers and specialist family violence support workers to provide legal and non-legal support. 

The service can provide referrals to other services such as counselling, drug and alcohol support organisations. This pilot is funded until 2019. 

The issues paper also notes the support given by Neighbourhood Justice Officers at the Neighbourhood Justice Centre in Collingwood, Melbourne. The NJC is a multi-jurisdictional court which delivers "therapeutic justice". 

It is non-adversarial, with its focus on community capacity building, treatment and examining the issues underlying why the proceeding arose in the first place. 

Neighbourhood Justice Officers assist clients to navigate the system, and connect clients with services. To be referred to the NJC, the events giving rise to the legal proceeding must have occurred in the City of Yarra. 

The ALRC is interested in how these models can be expanded to meet complex needs. In its paper, the commission suggests that technology is one means of assisting families, e.g. the UK's CourtNav program,  which assists self-represented clients to understand procedural requirements. 

The ALRC is pressing on with examining programs and court models that seek to build legal literacy and empower clients.  

The paper also notes that judges' limited understanding of capacity and disability can be a barrier to access to justice. 

The UN Convention on the Rights of Persons with Disabilities (to which Australia is a party) encourages states to engage with "supported decision-making". 

This is a collaborative process where a person with a disability asserts their own legal capacity, and a litigation guardian's role is to communicate the person's will and intention to others. 

Substitute decision-making occurs where a litigation guardian makes decisions on behalf of a person with a disability, which can amount to a denial of legal capacity. The ALRC suggests that supported decision-making should be better promoted in family law processes. 

An approach to the justice system which is supportive of disputants is manifest not only through innovative "navigation assistance" programs but in new court architecture. On April 3, the $73 million Shepparton Law Courts opened to the public, designed to "transform the way people in the area access justice services, particularly those affected by family violence". 

The courts are light-filled and include safe waiting areas and clear pathways designed to avoid confrontation between litigants.  

From: Elif Sekercioglu

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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