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How to cope with delays in the Family Law Court system

Watts McCray Lawyers

If you know someone recently involved in family law litigation you’ve probably heard them talk about delays in the Family Law system and how courts struggle with dwindling resources and increasing caseloads.

The Australian Government has asked the Australian Law Reform Commission to conduct a wide-ranging review into the Family Law system and to provide a report by March 2019.

One issue to be examined is whether the current adversarial court system is the best way to resolve disputes. As retiring Chief Justice Bryant, who has been in family law for more than 40 years, recently said: ‘I think there’s a lot more we can do with dispute resolution which doesn’t necessarily require a judge.’

Federal Attorney-General George Brandis has described the review as ‘necessary and long overdue’:

The review of the family law system will be broad and far-reaching, focusing on key areas of importance to Australian families … These include ensuring the family law system prioritises the best interests of children, best addresses family violence and child abuse, and supports families, including those with complex needs to resolve their family law disputes quickly and safely while minimising the financial burden.

While more than $80 million in extra funding and court resources were made available in the last federal budget, this does not go far enough to resolve the backlog of cases. Of the many cases before the court in 2016, only 15 percent went to a trial and final judgement. Chief Justice Bryant has also recently said:

The whole system suffers from a lack of resources to get through the work in a satisfactory way. We have an enormous number of cases and we know that most of them will settle [yet] they stay in the court without being resolved. They just sit on the list. That’s appalling.

What can I do to avoid getting entangled in court delays?

You can consider alternative solutions. The advantage is that these alternative methods involve mutually agreed settlements which means you keep control over the outcome and can move forward in the next chapter of your lives with financial security and dignity.

How do I decide what alternative method is the best one?

An experienced family lawyer can help you decide which alternative method is the best to resolve disagreements with your former partner over matters such as division of property and future care arrangements for children. This could well help you avoid lengthy court delays.

What are the alternative methods?

Here are four alternative methods you can use to try to come to a cost-effective resolution.

  1. Negotiation

With good legal advice and a good strategy, you might be able to negotiate an agreed settlement with your former partner. If you can’t, you and your former partner can instruct your respective solicitors to try to help negotiate an outcome, through letters or in a four-way meeting with everyone present.

  1. Mediation

If negotiation doesn’t work, you can try mediation. This is where a mediator (neutral third party) assists lawyers to reach an agreement. Mediation can take place at many approved community mediation centres in a neutral space. Parties can choose to have their lawyers present or attend mediation by themselves. Mediation allows both parties to keep some say in the final outcome while benefiting from the assistance of the mediator in working through difficult issues.

Mediation can take a couple of hours or up to a day. At Watts McCray Lawyers, we can recommend you to mediation services. Partner Debra Parker is a nationally accredited mediator. She was recognised this year as a leading ACT family lawyer in the Doyle’s Guide, voted by her peers. She was also named as a leading mediator in the ACT in 2016 and 2015.

  1. Arbitration

Arbitration is becoming more popular in Australia. This is when you and your partner agree to allocate your dispute to an arbitrator (a senior, experience family lawyer trained in arbitration) and that person arbitrates an outcome for you. Arbitration can proceed on the documents only, or the arbitrator can hold a telephone conference or hearing. Parties or their solicitors may present arguments. Parties pay the arbitrator’s fees, which are previously agreed in an arbitration agreement. You and your former partner must sign the agreement before arbitration begins.

An arbitrator’s award can be registered with the courts.

  1. Collaboration

Collaboration is a method of resolving issues after separation without going to court to litigate. Both parties sign a contract to collaborate, agreeing to work together with their collaborative lawyers to make decisions and find a solution that suits both parties. Debra Parker is also specially trained in this alternative method of dispute resolution and regularly participates in collaboration settlements.

Final step in any property settlement

One important final step in your property settlement agreement—no matter how the agreement was reached—is to properly document your settlement to make it legally enforceable.

Property settlement agreements should always be drafted by experienced family lawyers because they are technical documents that must be drafted correctly to be legally binding.

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Watts McCray Lawyers

Watts McCray is a leading firm of family and relationship lawyers. We have the largest number of accredited family law specialists in Australia and are backed by years of experience. Our lawyers have the skills to provide you with sound, practical advice about issues such as relationship changes and separation, property and financial matters, parenting arrangements after separation, child support and divorce. Watts McCray can also provide you with legal help if you want to resolve matters without having to go through Court. We can help with negotiation, mediation, collaboration and arbitration services as well as the traditional Court litigation process. We can also help with your estate planning and wills. Call us on (02) 6257 6347 for more information and for tailored services to meet your specific legal needs. More about the Author