What’s really causing the continuing prolonged wait times for families moving through the family court system? The Government’s current parliamentary review into family law will hopefully reveal the reasons behind the family court delays and provide direction for solving the ongoing bottlenecks. And there is optimism about the fact that the new head of the Federal Circuit Court, Will Alstergren, has recently announced there will be a “blitz” on the backlog of cases.
But in the meantime, practitioners continue to decry the typically lengthy family court delays affecting Australian couples and families, with an exasperated family law judge in the Parramatta registry again raising the issue of the “severe” delays in his court.
The Australian reports that Judge Harman has discussed the problems in the Parramatta registry, where the number of judges has recently reduced from five to sometimes “effectively two”. As a result, litigants can wait up to three years for a judgement in their matter.
More judges do appear to be headed towards the courts, with a new full-time judge installed in the Parramatta registry in late January. And four new Federal Circuit Court judges were announced in December by the former attorney-general George Brandis, in registries other than Parramatta.
The problem of there not being enough judges is likely linked to the under-resourcing of the family courts, though in the past Mr Brandis also blamed constitutional issues. In this regard, more clarity is desperately needed.
But Judge Harman also invokes the problem of unrepresented litigants causing family court delays and holding up everyone else in the system. He said:
“(A) failure to obtain advice and representation simply passes the cost of the litigants’ legal representation, the advice that they might obtain to tell them how doomed to failure their repeated applications with respect to issues already ventilated and addressed, on to this court (and) all the other litigants who are delayed”.
It is, however, your right to be a self-represented litigant and the courts have in fact published guidelines in relation to cases involving self-represented litigants, aimed at ensuring that the self-represented person is not at a disadvantage by not having a lawyer to represent them. It is hoped that the parliamentary review will address the issue of how to better facilitate self-representation without causing unacceptable delays for others in the system. (If you are thinking of representing yourself in family court, we can give you advice on what to expect, what questions a judge might ask of you, and generally help you prepare for your hearing, so why not give us a call —you have the right to a fair trial, even as a self-represented litigant.)
While the reasons for the endless family court delays continue to be debated, if you wish to avoid the potential for such delays affecting your situation, it is wise to also consider your non-court options. Non-court options are a more affordable and often quicker option for resolving disputes than going to court, while allowing you greater control and management of the process and the outcome. Three of the non-court options you might like to consider are:
- arbitration; and
Mediation is a legally required part of the dispute resolution process if your family law matter involves children. If you wish to take your matter to court about your kids, you will first need to attend family dispute resolution and obtain a certificate proving this. This is because in family law cases, you must make a genuine effort to resolve your disputes through dispute resolution services before you can apply to the courts for parenting orders. See the Court’s fact sheets on these processes – on the Family Court webpage. (Of course, as with everything in life exceptions apply).
But mediation can also be very effective for non-child related matters, and is usually much cheaper and faster than going to court. The process involves using a qualified mediator, who is often a family law barrister, or retired family law judge, and enables you to get an outcome in one half day or day long session (although preparation work is done).
For matters not involving children, another appropriate non-court solution is arbitration. Arbitration works like a private family court hearing, utilising an arbitrator (who is again a qualified arbitrator with specialised training, frequently a retired family court judge or senior family law barrister) to run the case. The advantage is you can do this immediately, without waiting for a court hearing. Judgements are binding as though they are court orders. The arbitration ‘award’ is then lodged with the court. Arbitration is better known in an employment situation, but is also an option for family law.
Collaboration is another non-court option for side-stepping the family court delays. Alliance Family Law has a special interest in collaborative family law and now employs two qualified lawyers (Cristina Huesch and Angela Li) to work on collaborative cases. Our principal lawyer Cristina highlights the efficiency of collaboration, describing a case where “we pretty much agreed everything in the first meeting, and in about four weeks were signing documents. Both parties were very pleased with the interest-based process and it has enabled a good working relationship to remain for the benefit of their children.” Again, one meeting is unusually fast, and many cases take between 3-5 meetings to resolve. However, the clients set the timetable. If they want a quick outcome, it’s possible. If they need time, they can take the time they need.
Source: The Australian (subscription)
Do you have a family law matter that looks like it will need to go to court to be resolved? Alternatively, if you wish to receive advice or clarification in regard to your non-court options, please contact Canberra family lawyer Cristina Huesch, or one of our experienced solicitors here at Alliance Family Law on (02) 6223 2400 for a cost-free, no-obligation first conference.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.
Going to family court is fun!” …said no one ever. Let’s face it, many of those who go to court feel they have no choice to do so because they are either being faced with a real injustice or are being bullied to go there by narcissistic or abusive exes – who can take some kind of deluded pleasure in forcing their former partner into court.
Alliance Legal does everything we can to resolve matters without going to Court. We carefully consider the cases we take on, and in particular we try very hard to avoid running cases in which potential clients attempt to use the legal system to get square with their exes.
Appearing in court is typically a nerve-wracking and stressful experience. Apart from the formal setting,and the obligation to reveal highly personal information to strangers including judges, lawyers and court-appointed experts, it’s the simple fact that the outcomes are so important, even life changing, that can cause people to feel dread and anxiety.
While you may prefer to avoid going to a family court, if proceedings have been issued by your Ex, they can’t be ignored. Even if you are negotiating with your Ex to try to resolve matters without a hearing, sometimes you need to prepare for court in parallel in the meantime, just in case negotiations are not successful.
To reduce stress, it helps to know what to expect from the court process, and while it’s possible to get a lot of good information from the Family Court websites and court publications, here are some additional tips for preparing for court.
By Gianna Huesch
In a case in the UK which is sure to cause controversy, a family court judge has recommended a child be put up for adoption on the basis that the little girl’s mother had herself experienced abuse and neglect as a child, which the judge deemed would now compromise her parenting capacity. The child’s mother had been raped and abused as a child, and Judge Jessica Pemberton ruled this left the mother without “foundation” to care for the toddler, aged almost two.
The mother, in her early 20s, had suffered from abuse and neglect as a child which had necessitated the involvement of social services in the Rotherham, UK, town where she lived. Social services had been involved in her life since she was 12, with the woman having suffered abuse by both her mother and stepfather as a child, and she had been shuttled between numerous foster homes. Continue reading
Managing communication and information sharing across two homes? These apps for separated parents can help. For family law advice, call us on (02) 6223 2400.
Effective communication between co-parents following separation or divorce is essential for the wellbeing of the children. It’s important that parents can engage in consistent, clear and conflict-free communication regarding all child-related issues, but due to the emotions involved in relationship breakdowns, this is sometimes easier said than done. Parents may be experiencing anger, grief, hostility or difficulties dealing with high-conflict exes and yet it’s unavoidable that parenting and financial issues must continue to be resolved into the future. Continue reading
Relocation: Mother’s unhappiness the decisive factor
Cases involving parents wishing to relocate with children are frequently heard in the family courts. If you need advice on relocation, please contact Alliance on (02) 6223 2400.
Every relocation case that comes before the family court is unique, but in each case, a judge is required to make a decision as to which competing outcome will be in the best interests of the child, not the best interests of the parents. However, sometimes what is in the child’s best interests will also depend on what is in their primary carer’s best interests, as was seen in a recent relocation case before the appeals court. Continue reading
When going through a divorce and property settlement, it’s important to ensure you have accurate and current valuations of everything in your net asset pool in order to negotiate a fair division. Whilst lawyers usually focus on houses, cars, boats, superannuation, your assets can include valuing household items and determining their ownership if items are valuable. For everyday household contents, lawyers will typically use low values, similar to what you might get if you sold everything at a garage sale, or an auction, or on Gumtree. Continue reading
In Australia’s continuing efforts to deal with domestic and family violence, political action has seen progress made in some areas, but one area which is seen as lacking in sufficient reform has been the area of housing and rental laws.
While it is well understood that victims of domestic and family violence need access to safe, stable and affordable accommodation if they are to leave abusive relationships, experts say urgent changes to regulation of the housing market are desperately needed.
Rental laws vary around the country but in most states and territories (that is, in Victoria, ACT, NT, Tasmania, SA and Qld) if a victim wishes to leave a rental property and is on a lease, they can’t immediately terminate the lease but have to apply to a court or tribunal for an order. Continue reading
Religion and divorce remain a controversial topic — read our update on the difficulties faced by Muslim and Jewish women who wish to divorce. If you personally need assistance with a divorce or other family law matter, please do not hesitate to contact us (02) 6223 2400 for compassionate advice.
IN OUR SECULAR SOCIETY, and thanks to past family law reform such as the no-fault divorce, it is not onerous to obtain a divorce, for husbands or wives. It may well be emotionally traumatic, and costly if a protracted court fight takes place over children or property, but our civil divorce law is gender neutral and drafted to be fair to both parties.
Spare a thought then for women of faith, in particular Muslim or Jewish women, for whom obtaining a divorce in 2018 is still a far from straightforward process. For the religiously committed, both a civil and a religious marriage is necessary, and when relevant, both a civil and a religious divorce. And this can be harder for women of faith than men to achieve. Continue reading
Whereas it is not illegal for parents to arrange for vaccination of their children, they are under pressure these days to do so in order for their children to be allowed to attend childcare and access certain Government benefits, under ‘no jab, no play’ policies.
And when in the care of the Department of Health and Human Services, the need to enrol them in such facilities means their carers need to ensure the children are vaccinated. So it was that the Department found itself in dispute with the parents of three Victorian children over the administration of measles vaccinations. Continue reading
Ever wonder exactly how many family law matters our family courts deal with each year? Here are some interesting facts and figures about the family courts as described in the latest issue of Australian Family Lawyer by Minal Vohra SC, who has analysed and summarised the information contained in the 2016-2017 Annual Reports of the Family Court and the Federal Circuit Court.
The Federal Circuit Court is Australia’s largest federal court, with the Annual Report counting 64 judges. This number demonstrates the court’s rapid growth since it was first established (as the Federal Magistrates’ Court) in 2000 with the appointment of just 12 magistrates. Ms Vohra notes, “Five ‘originals’ are still serving, namely Judges Mead, Baumann, Hartnett, Coker and Driver.”
While the Family Court deals with more complex family law matters (such as cases involving at-risk children), the Federal Circuit Court is designed to be a simpler alternative to the Family Court or the Federal Court, striving for informality and accessibility, utilising streamlined procedures and offering a range of dispute resolution processes. Continue reading