Out of the Maze

Pathways to the future for families experiencing separation

Report of the Family Law Pathways Advisory Group

July 2001

© Commonwealth of Australia 2001

ISBN 0 642 21020 9

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced without prior written permission from Info Products. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, Legislative Services, Info Products, Department of Finance and Administration, GPO Box 1920, Canberra, Australia ACT 2601.

Letter of transmittal


ChairRobert Garran OfficesNational CircuitBARTON ACT 2600

The Hon Senator Amanda Vanstone
Minister for Family and Community Services
Parliament House
Canberra / The Hon Daryl Williams AM QC MP
Parliament House

Dear Minister and Attorney-General

I now present to you the Report of the Family Law Pathways Advisory Group and commend its 28 recommendations to you for consideration. I see the report as one that puts family law policy in Australia well ahead of that in any other country. Our effort to bring all relevant services together into one system and to create system wide policies and standards is unique.

The Terms of Reference for this inquiry raised complex and diverse issues relating both to the family law system in all its parts and the experiences of families dealing with separation. The Advisory Group undertook various activities to gather the information on which it has based its recommendations. These activities included invited submissions, submissions from the public, consultations with consumers and service providers in locations in every State and Territory, targeted consultations with interest groups, a literature review and commissioned research, the details of which are set out in the Report. A vast array of sometimes conflicting material was brought to light by these steps and needed to be taken into account. The Group met in Canberra on six occasions.

I am grateful for the extension of time that was granted to the Advisory Group to allow the gathered material to be fully considered.

The members of the Advisory Group have brought to the inquiry a diverse range of experience and expertise and have held very different views on many aspects of the work. The Report aims to present a balance, reflecting the diversity of views on many of the issues addressed.

I present the Report and commend it for the early consideration of the Government.

Yours sincerely

Des Semple


20 July 2001

Terms of reference

Vision:An integrated family law system that is flexible and builds individual and community capacity to achieve the best possible outcomes for families.

Purpose: To provide high-level advice to the Government on how to achieve a family law system which:

•provides effective support systems for families;

•coordinates client-focused information and services; and

•provides pathways that are effective and appropriate.


1.The Family Law Pathways Advisory Group will formulate a set of recommendations on how to:

aprovide stronger and clearer pathways to early assistance that ensure people facing relationship breakdown are directed to services most suitable to their needs;

bhelp families to minimise conflict, manage change more successfully, and meet new obligations and commitments;

cimprove the targeting, coordination and accessibility of information and support for families during transition to and settling of new arrangements; and

dbetter coordinate service delivery between the range of agencies (both public and private) involved in assisting families interacting with the system.

2.The Family Law Pathways Advisory Group will consult appropriately and take account of:

athe range and nature of difficulties facing family members;

bexisting barriers (including cultural and linguistic) to access to services and support;

ccustomer service issues; and

dbest practice.

3.The Family Law Pathways Advisory Group will report to the Government within six months of its first meeting with recommendations for action, including mechanisms for taking those recommendations forward.

Members of the Family Law Pathways Advisory Group

Family Law Pathways Advisory Group Report1

Des Semple
Chair of the Family Law Council

Catherine Argall
General Manager
Child Support Agency

Bettina Arndt
Sydney Morning Herald and The Age

Professor Thea Brown
Professor of Social Work
Monash University

Justice Linda Dessau
Family Court of Australia

Professor John Dewar
Professor of Law
Griffith University

Richard Foster
Chief Executive Officer
Family Court of Australia

Ian Govey
General Manager Civil Justice and Legal Services
Attorney-General’s Department

Jane Halton
Deputy Secretary
Department of Prime Minister and Cabinet

John Hodgins
Chief Executive Officer
Legal Aid Queensland

Susan Holmes
Executive Director
Relationships Australia, Tasmania

Wayne Jackson
Deputy Secretary
Department of Family and Community Services

Winsome Matthews
Project Development Officer
Indigenous Women’s Unit
Women’s Legal Resource Centre

Scott Mitchell
NSW Local Court

Pauline Smit
Women’s Action Alliance (Australia) Inc.

Lyn Stephen
Community Mediation Service
Bunbury Community Legal Service

Grant Tidswell
National Manager
Families & Children Customer Segment

Graham Towle
General Manager, Care Services
Wesley Mission, Sydney

Family Law Pathways Advisory Group Report1


Letter of transmittal

Terms of reference

Members of the Family Law Pathways Advisory Group

Executive summary

Parts of the report

Part OneAn overview

Part TwoKey functions of an integrated family law system

Part ThreePathways

Part FourPerspectives

Part FiveManaging the integrated family law system

Part OneAn overview



1.2The Family Law Pathways initiative

Recommendation 1

1.3The scope of the family law system

Focus on parenting

1.4The principles underpinning the family law system

1.5Review process

Public submissions

Consultation program

Case study research

Literature review

1.6What the Advisory Group heard about the system

What the Advisory Group heard from consumers

Indigenous Australians

Some people manage well

Parts of the system are working well

1.7Analysis of the current system

The family law system was not designed as a system

Multiple problems are not being addressed by linked solutions

Mixed messages within existing policies

Limited child focus

Entry points to the system can be random and the ‘first-to-know’ agency can have a disproportionate influence on the path taken

Lack of accessible and timely information

When the system doesn’t seem fair

The system does not deal well with violence

Lack of ongoing support

1.8Designing an integrated system


Key functions

Proposed service delivery system

Part TwoKey functions of an integrated family law system


Community education

Recommendation 2

Education for young people

Recommendation 3

Professional education and development

Recommendation 4


Current situation

What is needed?

Recommendation 5

2.3Assessment and referral

Current situation

What is needed?

Recommendation 6

2.4Service and intervention options—helping family decision making

Limited focus on children

Access to services

Recommendation 7

Recommendation 8

Access to legal services

Recommendation 9

Improving awareness of non-adversarial options

Encouraging use of non-adversarial services


Recommendation 10

Service mix

Recommendation 11

Innovative services

Recommendation 12

Building collaboration between the gatekeepers to the system

Recommendation 13

Adversarial services

Recommendation 14

2.5Ongoing support—parents, if not partners, forever

Current situation

What is needed?

Recommendation 15

Part ThreePathways

3.1Overview of the pathways

3.2Self-help pathway

Recommendation 16

3.3Supported pathway

Recommendation 17

3.4Litigation pathway

Litigation as a last resort

Recommendation 18

Recommendation 19

Child abduction

Part FourPathways and the needs of specific groups

4.1Vulnerable people

Sensitivity to cultural and linguistic diversity

Support for people with a disability or illness

Support for rural and regional Australians

Recommendation 20

4.2Children’s perspective

Recommendation 21

4.3Indigenous families’ perspective

Recommendation 22

Recommendation 23

Part FiveManaging the integrated family law system


Recommendation 24

5.2Legislation and policy

Recommendation 25

5.3Funding the integrated family law system

Recommendation 26

5.4Improving coordination within the family law system

Actions needing national coordination

A proposed next step: taskforce

Coordination in the longer term

Recommendation 27

5.5Commonwealth–State division of responsibility

Recommendation 28

5.6Matters outside the Advisory Group’s terms of reference

Part SixAppendixes

Appendix 1List of submissions

Appendix 2Analysis of submissions

Appendix 3Consultations

Appendix 4Case study research

Glossary of terms

Bibliography on the family law system 1995–2001

Family Law Pathways Advisory Group Report1

Executive summary

Introduction: the Family Law Pathways initiative

It is always difficult when families split up. Parents, children and other family members have to grapple with complex practical, legal and emotional issues; everyone has to adjust to change and loss. Helpful and relevant information and support often aren’t easily available and services are hard to find, sometimes leading to ill-informed choices and unexpected outcomes. Stress and grief can make it hard to reach sensible decisions and some families experience a lot of conflict. The children of families in conflict suffer the most.

The community is concerned about aspects of the current family law system, which affects the lives of so many Australians. Often it seems to take too long, be too hard and be too expensive to sort things out. This can take its toll on families.

The Family Law Pathways Advisory Group is a joint initiative of the Attorney-General and the Minister for Family and Community Services. Its focus is on achieving better outcomes for family members, particularly children, following the end of a marriage or relationship. The Advisory Group has been asked to suggest ways to make the system work better for all the members of the families who need to use it.

What is meant by the family law system

The family law system is much broader than the courts. It also embraces the many service providers and individuals who help families to resolve legal, financial and emotional problems, and is centred around the family members themselves.

A vision for an integrated system

The Advisory Group envisages an integrated family law system in which family members experiencing separation can easily and quickly identify and access help when needed.

The system’s primary focus would be to support family decision making and family nurturing. Such a system would be responsive and coordinated. It would provide appropriate assistance to family members as early as possible. It would treat all comers fairly.

All those in the system would, above all, promote the interests of children and attempt to meet the needs of children. In turn, the effectiveness of the system would be improved through families’ increased ability to make informed decisions, leading to less reliance on the courts and decreased costs.

By reducing the levels of personal pain and distress involved in ending partner relationships, and by strengthening parenting relationships, a more effective family law system can encourage stronger personal relationships and healthier family relationships in both existing and new, blended families. It can also help to provide positive role models for children in their relationships.

Key functions

An integrated family law system would have five key functions:

•education for the community and professionals;

•accessible information;

•appropriate assessment and referral at all entry points to the system;

•service and intervention options to help family decision making; and

•ongoing support.

Pathways through an integrated system

These functions would sustain three types of pathways:

•self-help pathways;

•supported pathways; and

•litigation pathways.

Families would move along a chosen pathway. They might switch pathways as their needs or circumstances change.

Parental responsibility during and after separation

The concept of ‘parental responsibility’ is relevant to the ways in which parents access the legal system. Part VII of the Family Law Act 1975 emphasises parental responsibility and encourages parents and the courts to actively consider the best interests of the children in making decisions about their care and welfare. Parents act responsibly for the welfare of their children by accessing the system in good faith, by reaching agreement wherever possible (unless the welfare of the children or their primary carer is at risk from violence or abuse) and by accepting the outcomes produced by the system for as long as they remain appropriate.

Maintaining nurturing relationships between children and parents, even after separation, is known to be good for the children’s wellbeing. Policies, services and support networks for families undergoing separation need to support and enhance these relationships, when they are beneficial to the welfare of the children. Children need to be protected from the harm that is caused by violent and abusive relationships. In most cases, with the right kind of support, there is potential for maintaining parenting relationships, and for agreement between adults.

The stress and conflict around separation frequently puts children and family members at risk, and the family’s capacity to care for children with their best interests in mind is often lost.

Supporting family nurturing and decision making

It follows from this that all the service providers in the family law system should focus (both within their organisations and in their relationships with other members of the system) on the potential for their client families to maintain positive relationships that support each parent’s and other family members’ (such as grandparents’) ongoing capacity to nurture their children.

The Advisory Group believes that family decision making is the key to this process. Sustainable arrangements are more likely when there is agreement between adult family members, and children are involved in reaching that agreement. It is critical that guidance and intervention supporting this approach be consistent with each family’s particular circumstances. When violence or abuse is present, different approaches may be needed, and the safety of the family members and the speed of response must be the main priorities.

For example, if there are allegations of violence or abuse a full assessment of all the facts of the situation affecting the family members must happen without delay. Sorting out matters such as these early would help to ensure that family members are not disadvantaged and their capacity to maintain ongoing parenting relationships is strengthened.

Principles for an integrated family law system

The Advisory Group considers that a family law system should be one that:

•acknowledges the value of family relationships and seeks to provide families with a range of support services and information at various points in the family life cycle;

•values and supports the ongoing capacity in families, whether intact or separated, to provide nurturing parenting to their children;

•helps to minimise the damage of separation and conflict to partner relationships and to children, and maximises the capacity to re-partner effectively; and

•provides opportunities and incentives for families to reach agreement themselves.

This builds on four fundamental principles laid out in existing legislation, which also underpin the recommended system. These are, in brief:

•the best interests of the children always come first;

•non-adversarial dispute resolution is a priority;

•the safety of family members from violence must be assured; and

•parents are responsible for financially supporting their children.

Recommendation 1

The Advisory Group recommends that the family law system, in whole and in all its parts, be designed to maximise the potential for families to function cooperatively in the interests of children after separation. In doing so, it would ensure fair and equitable treatment for all, with particular attention to the ongoing parenting roles and support needs of both parents. The system would provide services for those family members who may face particular difficulties in adjusting to post-separation changes.

Wherever possible, family decision making would be encouraged, with parents making their own decisions about their complementary roles, with appropriate support from the family law system.

The current family law system

The family law system affects many Australians

The family law system affects the lives of many Australians. More than 52,000 divorces were granted in 1999–2000. About 53% of divorces each year involve children under 18, with the average number of children per family being 1.9. To the number of divorces must be added the substantial number of de facto relationships which break down each year. Many of these also involve children.

In 1999, nearly one million children lived with one natural parent and had another living elsewhere. Most of these children live with their mothers.

For families with children, contact with the family law system is frequently ongoing. For instance, of those parents who are or have been court clients, many may return to vary parenting orders or arrangements as their circumstances and the children’s needs change. The number is potentially large: over one million people with children under 18 years of age are now registered with the Child Support Agency, and payment of child support can continue until all the children in a family reach 18 years of age.

Contact with the family law system is not limited to contact with the courts. Many families are helped and supported by service providers and individuals with expertise in many different areas: law, financial management, counselling and mediation, to name a few. They can also help families access relevant information.

Focus on outcomes for children

Given the large number of children caught up in their families’ separation, the Advisory Group decided to focus primarily on improving the outcomes for children. It therefore gave priority to parenting rather than property and financial matters. It is acknowledged, however, that for many families parenting and financial matters are linked.