At present 70% of families resolve their matters with the help of counsellors and family lawyers without ever having to step foot inside a court room. Of the 30% who issue proceedings, between 3% and 5% require a final hearing. Again, most couples who issue will find a way to compromise their cases, again with input from counsellors, Family Reports and usually with the assistance of mediation and their lawyers. This statistic has been unvaried since the inception of the Family Law Act. The current crisis therefore is as a direct result of there being fewer resources to deal with the families in the list awaiting final hearing.
The Law Institute of Victoria and the Law Council of Australia have both been actively involved in the family law space petitioning government to replace retiring judges and the lack of judicial officers means that the system has been slow to finalise family law matters. A system that is slow to deal with matters means that the disputants have more time to argue and that leads to increased costs.
This is not the fault of lawyers or the courts. The issues which arise as a result of family breakdown can be messy and complex. A properly resourced court could lead to better systems being put in place with appropriate numbers of judges to hear such matters. There is no point improving a system and then hoping that judges workloads will miraculously lighten. There is always area for improvement and the LIV and LCA are working together to explore on how the FL system could be improved without much greater spend than at present.
It has to be remembered that the brain child of Lionel Murphy was intended to make family law “simple”. The Act was a far cry from what it is now and with the passage of time, the Act has been amended almost as frequently as taxation legislation. This phenomenon of added complexity is more a reflection of the issues which burden our clients’ lives rather than a system seeking to make the law more complex. Put it simply, the law is complex in direct response to how complex people’s lives are.
In response to the concept of “kill(ing) all the lawyers” and removing legal representation from a court or tribunal system, I often consider how inexpertly family clients have been communicating with each other in the lead up to separation and how clouded their judgment is. Creating a tribunal instead of court is simply changing the forum and not enhancing the knowledge or skills of a client to better cope post separation. I say to my current clients who complain about their former partner and the legal system – there are options.
- You can mediate
- You can make an offer or compromise your case and accept their offer or in other words:
- You can opt for Collaborative Divorce and agree that neither of you will go to Court;
- You can give your ex what they are demanding and walk away
- You can deal with your ex by yourself and not engage us or any other form of support when trying to unpack your relationship
- You can represent yourself in Court.
- You can refuse to participate in the Court process and have the Court pronounce orders (most likely against your interests)
Such a system would invariably place an unfair advantage on one party over the other even if you were to remove the ability of parties to be legally represented. Most lawyers know that if they assist their clients resolve their disputes that this will lead to a better result for all – particularly the parties’ children. Therefore most, not all lawyers, will work diligently to bring a settlement about. We know that when there are ongoing disputes between parents, this is what damages and harms children – not the separation of parents. So a court system which is slow, overburdened and unable to finalise disputes is not a good system and children are the forgotten victims. Yes, they appear in the affidavits before the Court, but the silent and secret harm marks them thereafter.
There is always room for improvement. We can always assist in the review of the practice rules in the Courts and give our coal face opinion about what would work better. Government needs to realise that all the tinkering with rules and fora in which family law disputes are resolved will not solve the fundamentals – you need good people deciding cases (judges) and able and competent people (lawyers) advising with specialists assisting (counsellors and experts) to assist families get past separation. Alternatively, government needs to get behind and support alternatives to litigation. For example, in our practice, we are supporters of Collaborative Divorce. This is a non-litigation based settlement process whereby lawyers and other professionals such as psychologist and financial experts sign contacts with families that they will never take them to Court.
There are plenty of options out there to reinventing the family law wheel. Clients and lawyers need to be more open to exploring settlement options and government needs to fully support the system when they can’t.
By Caroline Counsel
