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The embattled court system—is it possible to avoid Court?

By December 15, 2015November 7th, 2019No Comments

The troubled family court system has been in the news frequently lately, as we’ve noted before, and the situation seems to be worsening with the ABC now describing it as “at breaking point” and “in gridlock”.

The problems are being fuelled by a combination of reductions in federal funding and repeated failures to make timely judicial appointments, and are further exacerbated by an increase in domestic violence reporting and the problem of ice use in regional areas.  The increasing workloads faced by courts are causing severe delays so it makes sense that if at all possible, you try to avoid court  system altogether.

This year marks 25 years of collaborative law internationally and the 10th anniversary of collaborative law in Queensland (about the same in other States and Territories) and, given the chronic problems plaguing the family court system, it’s really worth reconsidering whether collaborative law might work for you.

At Alliance Family Law we have a special interest and focus on collaborative law, which gives divorcing couples a way to separate with dignity and to divorce without court, and allows you to retain control of the separation process. Apart from saving time, collaborative practice can in some cases be significantly less expensive, less stressful and has less of an impact on people’s parenting relationships than going to court. At other times, and due to individual circumstances, it can

Couples and their lawyers begin with a signed pledge to reach agreement themselves rather than hand things over to a judge, and all parties (including lawyers) aim to reach an out-of-court solution. As Lawyers Weekly writes, collaborative law:

“helps minimise conflict while all parties embrace new lives. It is about untying the knot of a relationship, not hacking at the rope”.  

A separating couple going to court if mediation fails may face a wait of up to several years before the final result. For example, in Wollongong, where there are over 500 outstanding family law cases, families face waiting until beyond 2017 for divorce, property and custody court hearing dates. One Wollongong mother interviewed by the ABC says of her five year wait:

“It’s incredibly frustrating. You feel your life is on hold until you can get it resolved. There’s nothing you can do, you’re at the mercy of the courts…If you can avoid it, if you can sort the matter out, then given my experience, I suggest you do that.”

It’s also important to remember that the majority of cases settle ‘on the steps of the court’. In other words, even after waiting 2-3 years for your day in court, in our experience many cases end up settling on the same terms as an offer made 2 years earlier. However, you still need to pay your barrister for the day or more set aside for your matter, and you will have spent a huge sum of money preparing for the final hearing. Imagine how much money you could have saved if you had only accepted a reasonable (but not perfect offer) earlier? Not to mention simply the relief at getting on with your life.

In a collaborative model, the matter would likely be resolved in far less time. This may not be achievable in a high-conflict divorce, but when both parties are keen to resolve the matter rather than up to 2-3 years, it may well suit both parties to agree to find a mutually-acceptable resolution and work to achieve it via collaboration.

Of course, the beauty of collaboration is that you set the agenda. If one party has moved on from the relationship, collaboration can ‘pause’ whilst the left-behind spouse catches up, either with therapy to deal with their grief, or simply by giving them time to absorb the fact the relationship is over. In the meantime, with everyone’s agreement, the parties can resolve to deal with urgent interim issues by consent – who pays the mortgage? Who lives in the house? What do we do with school fees? The parties can agree to get onto the bigger picture when everyone is ready, without pressure to reach a result quickly, because the interim issues are resolved.

The Lawyers Weekly story contains a detailed explanation of the process and expense involved in going through the court system, and notes by comparison how the collaborative model usually works:

A first meeting between parties can be convened within a few days or weeks. Early decisions can be made for interim agreements for the needs of children, and urgent property and financial issues. Lawyers for both sides openly discuss options in the presence of all parties. Meetings can occur regularly, which reduces pressure on participants. They have time to properly consider the consequences. If the parties wish it, a final agreement can be worked out in 3-6 months.

The major difference between collaborative law and other dispute resolution models is that should parties not be able to achieve an out-of-court resolution, the lawyers involved cannot go to court, which means they are motivated to help you achieve the out-of-court settlement. They will work through difficult phases in the negotiation and help you.

Divorce or the ending of a long-term relationship is a sensitive and personal matter. No single approach is right for everyone. Many couples find collaborative practice to be a welcome alternative to the often destructive, and sometimes very expensive aspects of court proceedings.  Collaborative practice offers a mechanism for reaching a legally enforceable resolution of your issues whether you are married, or in a de-facto heterosexual or same-sex relationship.

Call us on (02) 6223 2400 to talk to Cristina Huesch or one of our collaboratively trained team here at Alliance Family Law about your own situation. We can help you decide if Collaborative Practice is the right alternative for you and your family.

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