Family Law

The Libertarian Party will:

1. Emphasise the importance of parties negotiating in good faith with one another from the first instance.
2. Reassert the importance of freedom of contract in family law by expanding the recognition and enforcement of binding financial agreements between consenting adults.
3. Insist parties use ADR methods to the fullest extent possible to quicken and ease the process of reaching settlements. To this end, family law will require compulsory mediation and arbitration in all matters involving unresolved parenting or property matters. The Courts role will be to determine Appeals and complex legal questions or complex cases that involve serious questions of law. Parties will be free to choose a mediator or arbitrator by agreement in the first instance. Without agreement, the Court will be empowered to appoint a mediator or arbitrator.
4. Ensure that the focus of family law has a minimal impact on children. To this end, the family law will have the following as the default orders with respect to parenting matters:
   
   1. parties have equal parental responsibility;
   2. children of the parties spend each alternate weekend with each parent;
   3. parents share time equally with the children on festive days and school holidays; and
   4. parents share the children’s time equally on birthdays and other special personal occasions.
      These default orders will operate unless the Court orders otherwise.
5. Require courts or arbitrators to consider the following with respect to parenting matters: -
   1. The age and any special needs of the child;
   2. The relationship between the child and each parent or significant other, taking into consideration present and past relationships and roles and activities that each parent or significant other participated in with the child;
   3. The need to ensure that each child – whilst in the care of each parent – continues to engage with all appropriate health, education, support services, and or activities, with minimal disruption to the child’s lifestyle; and
   4. The extent to which each parent has endeavoured to encourage the relationship with the other parent or significant other.
6. Eliminate any perverse incentives from the family law system, such as allowing parents who have alienated a child from their other parent to be awarded a larger disbursement of property because they have ‘greater parental obligations’.
7. Set the family law so that – in the absence of physical and psychological violence –  shared parental responsibility is in the best interests of a child.
8. Ensure the family law – with respect to property matters:
   1. Has strict and efficient procedures concerning financial disclosure and discovery.
   2. Emphasises that property ownership – before the commencement of a relationship – is crucial to determining a proper division of any family law property pool. Furthermore, the advancement, maintenance and contribution by each of the parties should continue to be guiding principles;
   3. Allows a Court or arbitrator to make a recommendation to the parties about an equitable settlement. If one party refuses to accept the recommendation, that party may face cost consequences; and
   4. Specifies that inheritance shall not prejudice a party with respect to a potential property settlement, save in those circumstances where it genuinely relates to the contributions, maintenance, and or advancement of the shared assets of the parties.
9. Focus the family law on enabling parents and their children to adjust to separation as painlessly as possible. To this end, family law must require courts and arbitrators to consider the impact of separation on crucial aspects of the parties’ lifestyles. Specifically, courts and arbitrators must consider each party’s capacity to earn income and afford accommodation following separation before making orders or issuing judgements regarding a property pool division.
10. Specify that speed, efficiency, and cost-effectiveness are key obligations of any arbitrator appointed to assist with a family law dispute.
11. Ensure that judicial officers are required to impose specific, statute-mandated penalties when parties seriously and repeatedly breach orders.
12. Specify that there be no presumption – one way or another – in favour of resident or non-resident parents.
13. Make certain that referrals to Independent Children’s Lawyers (ICLs) only happen in exceptional circumstances where there is a serious risk to a child's health and well-being and not simply where there is disagreement about time spent with each parent. Including ICLs in matters where they are not strictly necessary only lengthens disputes and increases the costs associated with them.
14. Ensure that enforcement proceedings and penalties focus on the paramount importance of the children’s right to know and have a relationship with each parent.
15. Require Domestic Violence Orders be “mutual orders” in the first instance.  Breaches by either party will be subject to penalty. Mutual orders ensure the safety of both parties and avoid the time, stress and expense of litigation. Registered owners or leaseholders may be removed from their property on a temporary basis only, and not precluded from exercising their lawful rights indefinitely or pending proceedings.
16. Ensure that any Domestic Violence Order is made on a substantive basis before being used as evidence before the Court.
17. Prohibit collection of child support payments ordered in foreign jurisdictions in cases involving abducted children.
18. Seek advice from the Productivity Commission on how family law may be altered to improve national productivity.
19. Offer a national apology to all parents and children alienated from one another through the family law system in recognition of the injustice and hurt suffered by parents denied access to their children due to court orders made on mere allegations.

Discussion

The Libertarian Party believes in the importance and strength of the family as the key building block of society and the importance of mothers and fathers in the development of children. Family law should be crafted to support families and children and to give effect to freedom of contract. Yet, our current family law regime does not do this. Instead, it drives unnecessary conflict, parental alienation, lengthy periods of litigation, and prohibitive legal costs. This state of affairs must be challenged and changed, not only for the good of our nation’s adults but for the good of our nation’s children. As part of the proposed fundamental change to family law, there must be recognition of the harm to parents who have been separated from their children based on mere allegations.

Most family law proceedings involve only small asset pools or non-controversial parenting matters. Over 50% of all applications filed in the Family Court are consent orders, meaning the parties have ultimately chosen to resolve their dispute via agreement, not litigation. Moreover, even amongst matters that proceed to the litigation stage, only about 5% go to trial; instead, they are resolved via negotiation well before this time. Given all this, it is clear that emphasising Alternative Dispute Resolution (ADR) in Australia’s family law will assist in reducing the lethargy, inefficiency, and cost of the family law system.