Collaborative law – the hope for the future of Australian Family Law5-March-2018 Family Law By Simone Green
Collaborative Law is emerging as a very strong and successful alternative dispute resolution process which can ultimately save parties hundreds of thousands of dollars by keeping them out of Court.
In September 2017 the Australian Law Reform Commission (‘ALRC’) received Terms of Reference to undertake the first in depth review of the Australian family law system since the Family Law Act commenced in 1976. With the changing composition of ‘family’, the enormous strain and delays and resulting significant costs currently experienced by families within the court system it is timely that such a review occur to identify how the system can better meet the needs of contemporary families. As part of the review, the ALRC is consulting with lawyers, health practitioners, family and relationship support services and members of the public to obtain an understanding of the challenges faced by separated families. There is great hope among the legal community that the Review will achieve much needed reform.
What is clear is the current system is failing Australian families. Enormous over listing of Applications in the Sydney Registry of the Federal Circuit Court of Australia for example means that the docket judges (the judge assigned to a case) have hundreds of cases each to deal with, each competing for the precious resources of Court time and resources. What this means in effect is that despite the best endeavours of the judges, it can be months after filing an Application that the parties even get to Court, and then only the most urgent of urgent cases are provided with an interim hearing on the day, if at all. Families often become lost in the system for years waiting for hearing dates to finally decide their matters. This comes at great financial and emotional cost for separated families and can often be a means to perpetuate the vulnerability of the financially weaker party.
While it is compulsory for anyone seeking children’s orders to first at least invite the other parent or third party to attend at mediation, there are a high proportion of cases which are either not attempted (for purpose of refusal of the other parent) or not successful at first instance or deemed not suitable for reasons such as family violence. With property applications, there is no such requirement to even attempt mediation in the first instance.
The Courts are currently trying to encourage as many matters as possible to attempt mediation by way of Court referral as a way to reduce the number of cases awaiting hearing. This is a positive step given that a high volume of matters filed in Court will actually settle prior to a final hearing (after years in the Court system) in any event due to varying factors including the costs of ongoing legal fees encouraging the parties to engage in further settlement negotiations.
Collaborative Law can be used to settle children’s issues, property issues or both in a time and cost effective manner.
To engage in the Collaborative process, you need to see a collaboratively trained lawyer. Both parties need to agree to use the process and everyone including the lawyers sign a confidentiality and participation agreement which includes not using the same lawyers if negotiations break down and the matter requires a Court Application. In this way all of the stakeholders, including the lawyers, are committed to the process of settlement. All meetings are held jointly with the parties and their lawyers present and therefore all issues are addressed and workshopped respectfully, in real time, greatly reducing costs and delays usually experienced in adversarial style ‘correspondence wars’ which often lead to misinterpretation and hostility.
Accredited Specialist Family and Collaborative Lawyer Simone Green encourages anyone wanting a less adversarial, respectful and cheaper approach to family law to seriously consider Collaborative Law at the earliest opportunity after separation. The collaborative process is family law done differently and with integrity. For more information on Collaborative Law please contact Simone Green.
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