Court should become the last resort for resolving family parenting and property disputes!

The Crisis in the Family Court System

There are numerous media reports about the fact that the Family Court system is in a state of crisis. There are long delays in the resolution of parties’ disputes by the Court and this causes much angst for the parties and their children often resulting in mental health issues for all involved but is especially concerning in children. One recent article on the topic is from Katherine Gregory entitled Judges go public: Family Court shouldn’t be ‘making do’ . Fingers are pointed in various directions to cast blame depending on who you listen to including that there is a chronic lack of funding and resources, that the aggressive attitude of some lawyers is to blame and so on.

As a significant measure, in an attempt to address the existing crisis in the Family Court System, the Federal Attorney General announced some months ago, quite unexpectedly and without much apparent consultation, the merger of the Family Court with the Federal Court. There has been substantial criticism about this measure, for example by the Law Council of Australia President, Morry Bailes who stated:

“Our current understanding is the Australian Government will not make any new appointments of judges to the specialised Division 1 of the new court, meaning the quality of the family law justice system would reduce under this change. Australians may no longer have access to a court that specialises in family law.”

The message from various Judges and other people involved in the Family Court system is that a Court having to resolve a family law dispute should be the last resort.[1]

Alternative Dispute Resolution

Former Federal Circuit Court Judge, now barrister, Stephen Scarlett suggested that alternative dispute-resolution methods, like mediation and arbitration should be more prevalent so only matters needing a judicial decision made it to court in the first place:

“Only those that can’t be resolved that way should go to a hearing.” [2]

This would not only reduce the load on the courts but offer faster and often more effective means to achieve suitable outcomes for the parties in dispute. Alternative dispute resolution offers many ways to resolve family matters quickly, fairly and inexpensively through mediation and negotiation.

In some circumstances the ADR process cannot be applied:

  • There always must be a level playing field between the parties involved in the process.
  • Sometimes, the parties are not suitable.
  • There may be a history of domestic violence in a case which makes the prospect of parties having to negotiate via an ADR process inappropriate.

However, in the clear majority of cases, about ninety-five per cent (95%) parties want to resolve their dispute and they manage to resolve their family law dispute before the matter reaches a final hearing. [7]

The family lawyers at elringtons are committed to following all avenues of negotiation and mediation before suggesting court proceedings.  Elringtons has two family lawyers, Carlos and Anya, who are nationally accredited mediators , Carlos is also a NSW Family Law Accredited Specialist.

To contact Carlos or Anya or to make and appointment in either our Canberra or Queanbeyan office:

Carlos Turini: Accredited Specialist Family LawSpecialist accreditation and Nationally Accredited Mediator

e: cturini@elringtons.com.au  | p: +61 2 6206 1300

Anya Aidman: Family Law Solicitor and Nationally Accredited Mediator

e: aaidman@elringtons.com.au | p: +61 2 6206 1300

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[1] https://www.lawcouncil.asn.au/media/media-releases/as-it-stands-merging-courts-unlikely-to-alleviate-family-law-crisis

[2] https://www.abc.net.au/news/2018-10-31/judges-go-public-family-court-shouldnt-be-making-do/10450514

[3] https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx

[4] https://elringtons.com.au/2018/11/family-law-dispute-resolution/

[5] http://www.mondaq.com/australia/x/170796/Arbitration+Dispute+Resolution/Alternative

[6] Ibid.

[7] https://elringtons.com.au/2011/03/family-law-settle-out-of-court/

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