Family Law in 2015 proved to be a year filled with challenges for clients, lawyers and the Courts. With financial and budgeting constraints increasing pressures on the ability of family law courts to deliver services, what does 2016 have in hold?
Two words probably sum up the consequences of the appalling failure by successive federal governments to properly fund the Family Court of Australia and the Federal Circuit Court of Australia – “delay” and “embarrassment“.
Embarrassment for both lawyers and judges in having to repeatedly tell litigants that there are not enough judges to hear their cases, and that it may be 3 to 6 months before they can get an interim hearing and 3 years of more before they can expect a final trial.
The federal government’s abject failure to replace retiring judges in a timely manner, is a national embarrassment and a betrayal of those in the community most in need. It places women and children at risk and undermines the public’s confidence in the law.
Justice delayed is justice denied. And for those in need of judicial decisions when their marriage or relationship breaks down, they are finding themselves lost in the proverbial “black hole” where their case languishes for not just months, but sometimes years, without the benefit of a judicial determination.
Unless the federal government moves to address the funding crisis for the courts, we can expect to see the already diabolical situation, progressing to the point of almost complete collapse of the family law court system.
The next 18 months or so will also see the retirement of the current Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court, and the appointment of their respective successors. The appointments of a Chief Justice and Chief Judge are, as always, decisions of the utmost importance, which will leave their mark on the court and the community for decades to come.
The Family Law Profession
In 2015, it was a year of mergers and bulking up for many CBD practices, with a number of firms with a national brand making a move into a family law arena which has to date been dominated by small, boutique firms.
The next 2 – 5 years will see if that play bears dividends, or whether the national brand firms meet the same end as the big name firms of the 1980’s – who all but abandoned the family law area as boutique practices with lower cost bases emerged to take over the market.
Mediation & Arbitration
The continuing problems with delays in the court system and the need to provide more cost effective and timely outcomes for clients, has seen a continuing emphasis on mediation as the format for resolution of financial disputes.
It is now almost unheard of, for a large scale financial case to go to final hearing in the Family Court, in circumstances where the parties have not endeavoured to first resolve it through mediation.
But mediations have themselves faced some major dilemmas in 2015.
The first is cost. Gearing up for the mediation can be akin to the cost of going to the first day of trial, once valuations, solicitors, barristers and mediator costs are factored in.
The second is delay. Mediations can take months to arrange and prepare for, and if this is done before proceedings are started, then the consequences of an unsuccessful mediation can be a loss of 6 months or more in priority in the queue of cases awaiting trial in the Court.
The third – surprisingly – is a dearth of mediators capable of dealing with high level financial work. A number of prominent former Family Court Judges do the vast bulk of mediations in these cases.
The fourth is an absence of awareness about mediation schemes, such as the NSW Law Society settlement program, which provide a cost effective mediation system for small to medium financial cases and which more layers should be taking advantage of.
What we can also expect to see in 2016, is an attempt to push Arbitration as a model for the resolution of financial cases.
On 1 April 2016, a raft of changes to the Family Law Rules came into effect, which provide a mechanism for the conduct of Arbitrations and the enforcement of Arbitration Awards.
The greatest challenge to the successful take-up of Arbitrations may again prove to be the question of delay.
One party to a family law case often stands to gain, financially, from a case taking years to get to trial, most often due to expected increases in the balance sheet. Convincing that party to “step out” of the court system, and into Arbitration where a decision might be made years earlier, may prove a difficult hurdle to overcome.
Changes In The Law
Lobbying by the profession, much of it driven through the Family Law Section of the Law Council of Australia, has seen a Bill introduced to the Federal Parliament which will hopefully address and resolve many of the remaining concerns about the law on pre-nuptial and cohabitation agreements (BFAs).
If the Bill is passed by the Parliament, the public will gain the benefit of greater certainty about the binding nature of these agreements, and the circumstances in which they may be declared non-binding or set aside will be reduced.
The question that remains to be answered, is whether those family lawyers and barristers who previously decided not to advise on BFAs, are now willing to enter or re-enter that arena.
The other major law reform priorities for 2016, will be State and Federal action and co-operation in family and domestic violence cases, and continuing controversy over whether there should be simplification of the parenting decision making pathway in Part VII of the Family Law Act. The overly technical, complex and time consuming parenting provisions in the Act, were highlighted by a paper by a Federal Circuit Court Judge, addressing the “42 Easy Steps” to the making of a parenting order.
The National Family Law Conference
In October 2016, the Family Law Section of the Law Council of Australia hosts the 17th National Family Conference in Melbourne. With over 900 delegates expected from across the nation and overseas, and with the backdrop of challenge and change, it is an eagerly awaited event that will put many of the current issues under public scrutiny.
The above article has been prepared for Doyle’s Guide
by Paul Doolan of Barkus Doolan.