Fees targeted in sweeping family law reform

People who ‘wilfully mislead’ the family courts would face investigation for perjury, under new recommendations for family law reform.

Law Council of Australia president Jacoba Brasch SC.

People who “wilfully mislead” the family courts would face investigation for perjury, and the Family Law Act would be urgently redrafted to address the “misunderstanding” that parents are entitled to equal time with their children, under new recommendations for family law reform.

A cap of $50,000 — or 10 per cent of the property in dispute in family law cases, whichever is higher — would also be imposed under changes recommended by a parliamentary inquiry to rein in out-of-control legal bills.

Cancellation fees charged by barristers when cases settle ahead of a trial would also be banned, as foreshadowed by The Australian.

The long-awaited 244-page ­report into the family law system, released on Monday, states that lawyers should not be “profiteering from the financial and emotional stress of a relationship breakdown”. It says excessive costs is one of the key issues raised with the inquiry, along with long delays, the difficulty of enforcing orders, and the fair resolution of family violence allegations.

Lawyers pushed back at the move to rein in legal bills in family law property cases, warning a cap could leave people facing court without legal representation.

The report recommends a big increase in the number of court registrars to help judges resolve disputes, with an extra 25 to 30 new registrars and support staff appointed to help tackle court backlogs.

The registrars would be given new powers to make final orders in cases where property is worth less than $2m and to deal with parties breaching family court orders.

The report recommends that seven registrars deal with the 1600 contravention applications lodged each year to ensure they can be triaged within 14 days — but it does not recommend extra funding for more judges.

Law Council of Australia president Jacoba Brasch SC said the Law Council did “not agree” with further regulation of legal fees in family law cases, including a cap, but welcomed the report’s focus on mediation and arbitration.

“If a cap is invoked, litigants who reach any capped cost limit could become self-represented in the family law courts system and take up more judicial time, only increasing the delays,” she said.

She said the call for more registrars was commendable, but there was also a “critical need” for an ­increase in family law judges to ­decide complex cases.

The report recommends an injection of funding into Legal Aid to increase help for vulnerable families, as well as more funding for community legal services, and an expansion of Family Advocacy and Support Services.

It states mediation services provided by Legal Aid should be expanded to people who do not qualify for legal aid funding and to family violence cases, carried out by specialist practitioners.

It also urges the federal government along with the states to review family violence services to ensure there is adequate support services for female and male victims of family violence, and calls for a fresh review of the way police and courts respond to and deal with family violence orders.

A new tribunal that could resolve parenting disputes more quickly, cheaply and in a less adversarial way would be trialled for three years, and a Productivity Commission inquiry would be launched to investigate the costs of family dysfunction and relationship breakdown and the adequacy of preventive measures, including in relation to family violence.