Annual report [1997-98] - Family Court of Australia

The Family Court of Australia – annual report 1997-98
ent services and that men in particular are reluctant to attend counselling sessions because
they see them as being intrusive and biased in favour of women.
If an overly restricted use of terminology is obscuring the nature of our primary dispute
resolution direction it may be time to reconsider the language we use, although no decisions
will be made until extensive internal and external consultation has taken place.
Proposals for reform of superannuation law
In May the Attorney-General’s Department released a discussion paper which set out its
proposals to amend the law relating to the treatment of superannuation in family law. This
paper emphasised the uncertainty and inconsistency which result from the current treatment
of superannuation and pointed out that this may lead to inappropriate outcomes.
The major recommendation of the paper is that where parties are unable to agree about the
division of the proceeds of superannuation the Family Law Act should be amended to
include a presumption that the interest acquired by a spouse from the commencement of
cohabitation to the time of separation should be divided between the spouses equally.
The Court has responded to the paper. Its response recognises the need for the issue of
superannuation to be considered but warns that any reforms must be accompanied by a consideration
of all the financial provisions of the Act, given that widespread amendments in
this area (except for superannuation) were contained in the Amendment Bill which lapsed
with the calling of the 1996 election. The Court’s response also cautions that the adoption
of a presumptive approach to the division of superannuation is inconsistent with the broad
discretion available under the Act in relation to the property of parties. It sees the proposals
as representing a significant – but unacknowledged – shift towards a community property
approach rather than the current separate property regime which underscores the Act.
Arbitration proposals
For several years the Attorney-General’s Department and the Court have been engaged in
discussions about the role arbitration might play as an alternative to litigation. The 1991
amendments provided for the inclusion of both mediation and arbitration, with the momentum
to establish mediation resulting in the establishment of the Melbourne pilot shortly
thereafter.
The Court proposed a Court-annexed model of arbitration which would have allowed integration
with its other PDR services. The Attorney-General’s preferred model is one which
may be Court-referred, but which will essentially be provided outside the Court.
There will be no opportunity for non-consensual, Court-ordered arbitration, no requirement
for a rehearing by the Full Court on review of private arbitration, nor for a full rehearing
on review of court-referred arbitration. Amendments to the Family Law Act and
Regulations will be required and Rules will need to be drafted.
I see the proposed model as being a step in the right direction, but the reduction in the
Court’s ability to provide arbitration as it does in relation to other PDR services is likely to
detract from its success and widespread use.
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