The Deputy Chief Justice of the family court, Will Alstergren, has declared war on the backlog of cases in the family law system and his position is being praised, but has also been criticised. The NSW Bar Association has now queried whether the call-over scheme to deal with the family law backlog should be rethought, claiming it could do more harm than good.
Following on from the family law backlog blitz carried out in Melbourne last year, the scheme is set to be repeated in Sydney late this month, with further call-overs planned for Brisbane and Adelaide.
During the blitz on some of the most delayed matters in the system, parties are called before the Federal Circuit Court and triaged–referred either to mediation, arbitration or family therapy or matters are set down for hearing.
But litigants who have already been waiting years for a conclusion in their matters “should not be put to the further expense, delay and risks of the referrals proposed” said Mr Arthur Moses, president of the Bar Association. “If matters cannot be settled, they will go back into the lists and will have to join the long queue of cases awaiting trial.
In Melbourne last year, 263 cases were triaged in the Federal Circuit Court, which reported the result was that 70% of the cases settled and around 350 judge days were freed up. However, this apparent success is believed not to reflect the instances where “some clients were forced to spend thousands of dollars in added legal fees only to find their disputes further delayed”.
To avoid such situations occurring, a group of 140 Melbourne barristers formed a pool of potential pro bono lawyers to assist with the scheme.
There’s no question something needs to be done to deal with the 18,000 parenting and property disputes clogging up the family law system. Mr Moses recognises that Mr Alstergren is acting in good faith with the family law backlog blitzes.
But the use of barristers to mediate cases on a pro bono basis could cause “unjust outcomes” for the children involved in the custody battles, said Mr Moses: “The NSW Bar is very troubled that in the rush to effect mediations by the use of pro-bono services, mistakes may be made or unjust outcomes may occur for women and children who are the subject of custody battles”.
Blitzes like this were unsustainable as a solution, particularly without enough funding and therefore needing practitioners to offer services on a pro bono basis. Mr Moses said NSW barristers were accustomed to taking on pro-bono work and did so happily to “give something back” to the community, but this work could not be “a substitute for the proper funding of the courts and the legal-aid system for those in need of family-law assistance”.
“The NSW Bar Association repeats and renews its call for a commitment by the federal government to the proper funding of the family law system,” Mr Moses said.
Source: The Australian
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