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How we might do better (Family law isn't about winning - one lawyers opinion)

What follows may not win me many friends however I hope it stimulates debate and action.

What follows may not win me many friends however I hope it stimulates debate and action.

The lack of resources available in the Family Court of Australia and the Federal Circuit Court of Australia to hear and determine family law disputes in a timely way, has gathered more public interest.

With access to legal representation also diminishing, the issue of funding those courts has drawn much public comment. Those writing about this issue have made a very clear point, that more funding is required to meet this growing problem. I don’t dispute that.

However, I do argue that neither the responsibility nor solution lies solely at the feet of the Federal Government.

Apportioning more taxpayer money to fund more judges and legal aid to handle the flood of matters entering the family law court system, will not necessarily make a long term impact upon the delays in justice. The profession (and by this I include myself, solicitors, barristers, ADR practitioners and other aligned practitioners that work within or on the periphery of the courts) need to shoulder more responsibility for diverting parties away from the family law courts.

In short I ask, can we do more?

I am proud to call myself a family law practitioner. We deal with often complex dynamics arising from the union of two people to assist them resolve their disputes about parenting or property. Sometimes the clients are very challenging, sometimes the dynamics are very challenging, and sometimes the law (or its interpretation) is very challenging. For the most part good family law practitioners will keep their clients out of the court “system” and steer them down the path of alternative dispute resolution.

Those practitioners know that no one wins once court proceedings commence.

It is my personal view that more clients could (or should) be steered in this direction, all with the net result of keeping another family out of court. Everyone wins in this scenario. Further, I think there is some value in providing re/training in family law jurisdiction advocacy. Bad advocacy wastes Court time. These are my thoughts drawn from my own experiences which are (to adopt a phrase of one of my learned colleagues) a mere drop in the ocean compared to many others;

1.     Better training for the new

Back in the olden days, I was lucky. The QLS (I think) or the Family Law Section ran family law training weekends called SOAPs. (Simulated Opposed Action Programs). This training provided me, as a young lawyer, with a chance to brush shoulders with judges, registrars and senior counsel in a mock environment that covered everything from dealing with a highly stressed client at first interview through the entire process of preparing for trials, appearances at conferences and so on.  An emphasis on de-escalation of disputes should be a core skill of every new lawyer with a constant reminder that court proceedings are not about winning or losing but “managing” an outcome.

2.     Adopting a less adversarial approach

As counsel I am often briefed with every single piece of correspondence generated in a matter including, the first email / letter exchanged. Recently I read an email sent at the outset of the dispute. Initially I was struck by the unnecessarily antagonist nature of the correspondence and the failure to consider the Pre-action Procedures (although not applicable in the FCC they should be) but then I wondered, does anyone even just pick up the phone and talk to their fellow practitioner anymore ? What is lost in simply having a pragmatic without prejudice discussion to suggest a less adversarial interventionist approach rather than firing off the bazooka of allegations under the caveat of “Our client instructs us that….”

3.     Approaching mediation as the ends not a means to an ends

Here in Queensland we can be proud of our national reputation as the industry leaders in terms of the promotion of private mediation to our clients.

Again, from my own experience, I have observed a correlation between failed mediations and the failure of one or both practitioners approaching same in a less than prepared way; as a step on a path to litigation rather than the final step toward resolution.

Perhaps we have become too comfortable with our chosen panel of mediators as it is a no risk forum for lawyers. Perhaps there is a bit of apathy in terms of preparation for same ?

Doing all you can to ensure the mediation succeeds increases the prospect of settlement. This keeps another family out of “the system”. Perhaps there needs to be more focus upon this aspect of legal representation.

4.     Considering arbitration

As a corollary to the above – if mediation representation causes no anxiety but court representation causes considerable anxiety, why wouldn’t a practitioner adopt arbitration as an appropriate ADR model ?  This has not been a familiar ADR process to family lawyers but is common place in other jurisdictions. Is fear (or ignorance) driving this lack of utilisation ?

5.     Minimise your court foot print

Here is just a list of what I mean by this:

-       Succinct material

-       Avoiding annexures that can be summarised

-       Clearly drafted applications

-       Short written outlines

-       Draft Minutes

-       Exhaust pre-court negotiations – for goodness sake, exchange proposals well in advance and get there early on the day of a hearing

-       Know what the court will want from you, deliver it quickly

-       Discharge proper court advocacy. (Avoid “ping pong” advocacy from the bar table)

6.     Be a mentor not a competitor

I think the more experienced family law practitioner should give back. This is more than just speaking at CPD events. It means being available to younger colleagues for assistance and guidance. Establishing “mentor” type relationships with inexperienced lawyers and being prepared to give a subtle kick up the bum to someone when they are falling short of the expectations of our colleagues – I know I have had one or two over the course of 25 years in this jurisdiction. It’s better to be kicked in the pants by a colleague than a judge, or worse, the LPT.

In the words of Mohammad Ali – “Never look down on someone unless you are giving them a hand up.”

7.     Advocate for Change

Our system is not perfect. Be vocal for change.

For what it is worth, here are mine;

-       Compulsory FDR for not just parenting matters but property as well. It makes no sense to me that the best interest decisions of children are seemingly delayed from reaching court but money matters are not. (I know the Constitution is raised to repel this idea – that’s not good enough in my view)

-       Taking compulsory dispute resolution one step further, the mediator ought to be able to provide a certificate that can inform the court whether either or both parties made a genuine attempt to resolve the matter

-       A stronger Gatekeeper. Legislative change that stops ill conceived, unparticularised or disproportionate matters getting into a duty list particularly if all forms of ADR have not been exhausted should be implemented.

-       A compulsory ADR plan that also includes a plan for arbitration in property matters with the onus to be on the party to convince a court why their matter is not appropriate for ADR including arbitration.

-       Broadening the matters that may be arbitrated. Non-complex “contact only” or specific issues parenting matters could be arbitrated thus following arbitration models in both the UK and USA.

-       GST exemption for ADR (mediation and arbitration). In my humble view this would be a negative sum loss (or gain) to the Federal government. A matter resolved privately saves valuable court resources. I don’t know what one day of Court time costs the federal budget but I would expect it to be more than the amount of dollars recouped via GST on an arbitrator’s fee.

Modern day family law advocacy is practised against a background of lengthy and costly delays if the client (or professional) simply wants to roll through the family court process.

If we all continue to strive for excellence, I cannot see how this would not alleviate some of the resourcing issues in the family law courts. It won’t cure the problem but it is a start.

Disputes that don’t need judicial intervention should never see the light of day in the family law court jurisdiction. The majority of matters that have proceedings filed, directions made on first return only to resolve at mediation thereafter fall into this category. So do many others.

Let's continue to strive to be better !

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