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Pauline Hanson's family law plans well-meaning but unworkable

By Jennifer Hetherington - posted Tuesday, 21 February 2017


One Nation leader Pauline Hanson's blueprint for family law change in Australia is unworkable and ignores reality.

That's my view as a Brisbane family law specialist who believes the One Nation leader's radical plans to overhaul the nation's family law system makes too many general assumptions and does not reflect current family law reality.

One of Senator Hanson's plans to change the family law system would force couples into pre-nuptial agreements outlining how they would deal with their children and assets if a relationship broke down.

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As an Accredited Family Law Specialist I'm aware we have over 100,000 marriages per year in Australia.

That's a lot of pre-nups for the Court to approve on top of existing work. The already-overloaded courts would need to hire an army of staff to administer this or the system would just implode under the workload.

Ms Hanson's plans are well-meaning but impractical and are aimed at a populist audience rather than critical voters who would be wary of generalised policies.

Ms Hanson wants a complete overhaul of the Family Law system. It's true the system is under enormous strain right now but compulsory court- approved premarital agreements on finance and parental issues will just make it worse.

We need to be looking at options to stop people going to Court and getting matters out of Court that are already there. Adding 100,000 extra cases a year to an already under-resourced Court is only going to make things worse. There are likely to be many unintended consequences from the proposal.

I have a suggestion that I believe could reduce the number of cases filed in Court, resolve some of the backlog that currently exists and free up time for Judges to hear the really serious matters, sooner.

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As it stands, there are a number of ways to resolve a family law matter out of Court. Collaborative Law and Mediation assist people to make their own decisions. Arbitration outsources the decision to an arbitrator (a 'private judge'). At the moment parties can agree to attend any of these but they cannot be ordered to do so. In my view this needs to change.

It is time for mediation to be compulsory before filing an application seeking property orders, unless exceptions apply as they do for parenting cases.

Parties cannot commence custody proceedings without attending Family Dispute Resolution (Mediation) but they can go to Court about their finances without so much as giving the other party an offer to settle. This has to stop.

The Court needs to be dealing with the critical custody issues that involve the safety of children and should only be dealing with property cases if all other settlement options have been exhausted.

I also believe that Judges should be given the power to order people to attend mediation or arbitration if their matter is already in Court.

For people who have the financial resources to afford it, Judges should have the power to order them to attend arbitration.

It's akin to people using a private hospital rather than staying on the waiting list for a public hospital. The Court provides its services essentially for free – why should millionaires arguing over property, who can afford to pay for an arbitrator, be taking up time that a Judge could be spending dealing with the welfare of a child?.

With regard to Pre-nups, parties can already elect to enter into a legally binding prenuptial agreement

However having a requirement that people sign prenuptial agreements before they get married does not take into account the many de facto relationships that people in Australia enter into. Eighty per cent of people live in a de facto relationship before they marry. How you compel them to have the de facto equivalent of a pre-nup would be an impossible challenge.

You might be able to convince the State Governments to refuse to issue a Marriage Certificate unless someone has an approved pre-nuptial agreement, but how do you enforce it for a de facto relationship? It would be like trying to herd cats.

Perhaps the most concerning is that Ms Hanson has suggested that these prenuptial agreements should also include parenting arrangements. Whilst I understand that she is trying to ensure fairness and reduce the number of cases in Court, this has just obviously not been thought through. Expecting a couple who may be young to make an agreement about what the parenting arrangements will be for children who have not yet been conceived is effectively asking them to conjure up a crystal ball.

We don't know when we get married what the individual characteristics of our children will be.

They could be on the autism spectrum, suffer from severe disabilities, be gifted and talented, be particularly anxious. We just don't know. Furthermore, what might be appropriate for a 4 year old is not necessarily going to be right for a 4 month old or a 14 year old.

It's just a poorly thought through, populist policy, and the reality is many people are able to resolve parenting arrangements without any court intervention. The Federal Circuit Court's own annual report for 2016 shows that by and large the Court is now primarily dealing with the most serious of parenting issues such as abuse, drug dependency, family violence and mental health.

Whilst about 40% of marriages end in divorce, a lot of people never go near a court to resolve their parenting and property arrangements. To force everyone to apply to court to have an agreement ratified is going to overburden an already over- loaded court and could potentially result in delays of years for people to be able to marry.

I agree we need to find ways to reduce the burden on our court system, but I just don't see how this is the answer. Why make 100% people go to Court when 40 years of statistics tell us that about 60% of them are going to stay together?

Australia needs to have a discussion on reforming the Family Law system but I don't think Pauline Hanson's simplistic views make her the person to lead this debate, however I am happy to have a conversation with her about it.

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About the Author

Jennifer Hetherington is a multi-award winning Family Law Accredited Specialist and principal of Brisbane family law firm Hetherington Family Law.

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