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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:

  • 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 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.


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