Long delays are normal
Chronic under-resourcing in the family courts means long delays are occurring in replacing retiring judges, according to the Law Council. These ‘gaping holes’ in the judicial roster are contributing to the long delays experienced by court users, and the Law Council has again asked that governments inject much-needed funding into the embattled court system.
In what is described as ‘inexcusable and unexplained neglect by governments’, courts are often unable to immediately replace retiring judges, even though the judges’ retirement usually comes with months of warning and is no surprise, as most judges retire at the mandatory age of 70. A recent example given by the Law Council illustrates a recent typical gap of 20 months, between Justice Robert McClelland’s appointment and the judge he replaced.
So what are your options?
Given the long delays in having your matter heard in the family court, it may be wise to think about 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
-mediation,
-arbitration and
– collaboration.
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 factsheets on these processes on their webpage: www.familycourt.gov.au. [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. 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 recent case where “we pretty much agreed everything in the first meeting, and in about four weeks are signing documents. Both parties are 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.
Please call us here at Alliance Family Law on (02) 6223 2400, for advice or clarification of any of the issues discussed above, or for assistance with your collaborative divorce or family law matter.
To find an arbitrator or mediator visit http://www.aiflam.org.au/, or to find a dispute resolution service provider in your area visit www.familyrelationships.gov.au. You can also call the Family Relationships Advice Line on 1800 050 321.
