FAMILY LAW
DEALING WITH DISHARMONY: THE LONG ROAD TO REFORM THE FAMILY LAW SYSTEM MICHAEL ESPOSITO
F
amily lawyers have been under attack lately. Last month, an article ran across News Corp mastheads around the country, subsequently triggering a slew of scathing op-eds, that was critical of family lawyers for allegedly overcharging clients and putting their own interests first. Not only were the claims made in this piece questionable at best, but it completely ignored one of the major reasons costs have increased for litigants in the family law system – the chronic delays in the Family and Federal Circuit Courts. The problems facing the family law system have been well-documented, and given the highly emotional, angst-ridden and at times traumatic nature of many family disputes, it’s perhaps no surprise that the Courts and the legal profession become undeserving targets for blame from those who have not completely gotten their way in a dispute or disagree with a judicial determination. But the fact is that almost all family disputes require some form of compromise, and most family lawyers do their best to help their clients achieve a fair outcome, keep costs down, and resolve disputes as quickly as possible. The disputes that progress all the way to trial do so because they are extremely complex and often involve a high degree of risk and emotion. It doesn’t help that the Federal Circuit Court and Family Court are absolutely overwhelmed with cases. Despite the best efforts of judges, many litigants have a long and anxious wait for justice.
THE REFORM PROJECT Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, The Hon Will Alstergren, has made it his mission to do all he can to make the family law system work better for parties with the limited resources he has to work with. He freely acknowledges that current
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backlogs are unacceptable, but when you have 21,000 family law cases pending across both courts, one can appreciate the monumental challenge that awaits him and his fellow judges. His Honour is not waiting for the outcome of future inquiries, responses to the ALRC Report, or the outcome of debate about legislative change. “Australian families deserve our best and we are getting on with the job now,” Chief Justice Alstergren said. His Honour certainly has made progress since his appointment as Chief Justice 12 months ago. He has spearheaded a number of projects aimed at streamlining the family law system with the ultimate objective to resolve disputes in a timely fashion that mitigates the financial and emotional toll these proceedings inevitably take on parties. Integral to this reform process is developing mechanisms to promptly identify the main issues of contention in disputes. “We started off by trying to identify as best we could how long matters have been in the system for, if they’re property or parenting matters or a combination of both, and whether they’re susceptible to ADR (alternative dispute resolution) or if they are matters of high risk to children in particular, and what we can do about them,” he said. “For cases that we’ve identified as appropriate for further ADR, we’ve put them into lists which we can then call over to tease out which issues are still alive between the parties, if there are further matters that need to be dealt with, what issues are causing a roadblock, and what needs to be done to get the case resolved or determined.” “On a number of occasions when we have conducted call-overs of cases which have been in the system for a long time, many are settled before or on the first event, and if they didn’t settle on the first event we were able to identify the remaining issues and manage them toward resolution accordingly”.
Chief Justice Alstergren reported that more than 50% of cases nationally settled in situations where the court directed matters to some form of ADR. His Honour is aiming to create an environment where parties are given every opportunity to settle within six months, and if this doesn’t occur, the court will aim to get the parties to trial as quickly as possible. The key, again, is early identification of the major issues. Chief Justice Alstergren said the Courts are also introducing a process where parties will, as their first obligation upon coming to court, be required to fill out a form identifying what is in dispute and notifying the court if anyone is at serious risk of harm. The Courts intend to publish a core statement of principles under a joint practice direction which compels parties to identify and narrow the genuine issues at play, take reasonable steps to settle out of court, and warn of potentially adverse cost consequences (including personally against lawyers) of failing to be proactive and cooperative in seeking to settle disputes expeditiously.
ON TRIAL: DEALING WITH HIGH RISK MATTERS Of course, not all matters can be settled out of court. There will always be cases that can only be determined by a court, especially when they involve at-risk children. Protecting children is the number one priority of the Courts, and it is also arguably the most difficult and disturbing part of being a family law judge. The inordinate delays confronting the system heighten the risk of vulnerable children, who may be waiting months, if not years in dangerous family situations for decisions to be made that affect their fate. “We’re working incredibly hard to ensure we get notified at the very outset if there are serious risks,” Chief Justice
