Underfunding and delays in the Family Court and Federal Circuit Court are well known. Final hearing dates for parenting matters are now being listed into 2019, and the situation is not isolated to any one Court, the problem is widespread.
In an interview with the ABC last month, the Family Court's Chief Judge Pascoe, called for more resources in regional Australia where some families are waiting years for a final court hearing to settle disputes such as dividing property and parenting orders. The backlogs and delays, which are costing families money and unnecessary anguish and distress, are the result of insufficient judges being appointed, and the non-replacement of retiring judges.
In an effort to relieve the pressure, Federal Parliament recently passed the Courts Administration Legislation Amendment Bill 2015 which seeks to merge the corporate services functions of the Federal Court of Australia with those of the Family Court of Australia and the Federal Circuit Court of Australia, bringing the three courts into a single administrative entity from 1 July 2016.
While the changes sound promising for the future and will allow the government to invest the financial savings into the court system, families who are separating NOW still need to explore ways of avoiding delays and the associated costs.
What can you do to avoid the delay?
There are a few things that can be done to avoid getting bogged down in the court system, or to get out of it in a timely manner.
Get good advice early
Speaking to a solicitor at an early opportunity is crucial. This will provide guidance as to the process, what you can expect and the matters that the Family Law Act 1975 and court consider the most important. It will also include an assessment of likely outcomes in both property and parenting matters.
Financial Disclosure
The Family Law Act 1975 imposes an obligation on parties to make a full and frank disclosure of their financial circumstances. Making sure that all documents have been disclosed early in the process assists in reaching an early resolution, or if not, at least allowing each party to communicate their position to the other.
Family Dispute Resolution
Before any parenting proceedings can be commenced, with some limited exceptions, parties are required to attend Family Dispute Resolution Mediation (FDR). A successful FDR process will mean you can avoid court, except to formalise orders.
Mediation
Mediation is a formal process where the parties (and their solicitors) meet with an experienced mediator to try to reach an agreement. The agreement will usually be reduced to a written document, in the form of Consent Orders which have the same legal force as if they had been made by a judicial officer after a court hearing.
Informal Settlement Conference – Property and Parenting
An informal settlement conference is similar to mediation, but without the Mediator. This process saves the costs associated with mediation, but does lack the benefit that the objective view of the mediator can bring.
Arbitration – Property and Financial Matters
In Arbitration, an independent Arbitrator makes a decision, after reviewing the evidence, hearing submissions from the parties and assessing the respective merits of the parties' cases. It is similar to the court process but much less formal. The Arbitrator is usually a solicitor or barrister, experienced in family law matters. The decision of the Arbitrator can be registered and becomes enforceable, with some circumstances in which it can be reviewed by a court.
Conciliation Conference – Property
In family law property or financial cases, the court will order parties to attend a conciliation conference, involving the parties and their solicitors, before a Registrar of the court. The Registrar cannot make a decision, and the parties need to reach agreement for a matter to resolve at such conference. The benefit of a resolution is that any agreement can then be the subject of orders which the Registrar can usually make at the time of the conference without delay. Some courts are requiring parties to attend private mediation, rather than using the conciliation conference process, which enjoys a very high resolution rate.
Summary
Some family law matters will not be capable of resolution, however in many cases, a proactive approach to exploring possibilities and opportunities for settlement will be successful. Good advice and an experienced advocate will go a long way to achieving such a result. The added benefit of resolving your issues outside of the Court process, other than avoiding delays and Court costs, is that an agreement reached between the parties is usually better than orders made by a court which neither side may like.
For more information on the family law process contact Angus Edwards or Sahar Orya on 02 6331 2911.