What crisis? A way out of the Family Court mess

I read another article this week slamming the Family Court. It’s stressed to breaking point and in disarray.

No surprise to anyone who has had to spend any time there. But what attracted my attention in this particular article was a statistic posted in the intro as a rider.

Family Court crisis

The article drew attention to debate in Federal Parliament that arose after a letter from child protection group Bravehearts and a coalition of 40 community groups and experts wrote to every Federal MP calling on them to commit to a Royal Commission.

The letter described our family law system as “the most dangerous institution for children and families that Australia has ever seen.”

It went on, describing catastrophic failures in the system as “devastating families and causing lifelong trauma-related dysfunction, and at worst leading to the death of children.

“Lies, damned lies and statistics”

At the top of the story was this comment: “Please remember 2-5 per cent of separating couples end up in the court system. Most legally represented parties settle out of Court.”

It sounds good but it’s a figure that needs a bit more interpretation and – if you are involved in a family law matter or about to be – it’s something you need to have a very honest conversation with your family lawyer about.

Journo maths

Its so-called because when you are trying to meet daily deadlines, the easiest thing to do is look at the figures and find the dramatic numbers – two genius children can skew an entire school’s Year 12 results, (particularly if only 30 kids sit exams); “The incidence of naughtiococcal syndrome in children has tripled in the last 12 months!”. It may have gone from 0.02 per cent to 0.06 per cent – it has tripled but is still highly unlikely to knock your kids over.

The reality

According to ABS figures (I never said I didn’t like journo maths) in WA last year there were 5,495 divorces granted. A divorce is different to proceedings for parenting and property which usually happen before the divorce, but it is nevertheless a fair indication of how many married relationships breakdown.

That figure doesn’t take into account de facto relationship breakdowns, which can become a family law issue but don’t require the couple to get divorced. We know de facto relationships have increased, but precise figures are unclear. At a very generous estimate let’s say it’s the same.

So we are talking around 11,000 relationship breakdowns in WA in 2017 – still with me?

Family Court

Family Courts around Australia are at breaking point. They are overloaded, overworked, under stress and in crisis. Delays are causing serious injustice and the trauma referred to by Braveheart.

In the last month The West Australian reported on a family law matter that had been going for eight years, including two and a half years waiting for a judgement.

https://thewest.com.au/news/court-justice/delays-in-wa-family-court-cases-soar-ng-b881035757z

That unexplained delay, along with “deficiencies in the reasons and fact-finding process” by the judge led to the Supreme Court ruling that a miscarriage of justice has occurred and a new trial ordered. Eight years later and they are starting again.

But hang on, how can that be if only 2-5 per cent of family law matters are making it to court?

Wonky figures

The Family Court of WA has 5 judges, including the Chief Judge, 9 magistrates and 5 registrars.

Two to five per cent of 11,000 is somewhere between 220-550 cases each year. Take out public holidays and the Family Court runs for around 50 weeks of the year. So at most that’s around 11 matters per week. For 19 judicial staff.

That’s not stress, that’s the ration of staff to tourists on a luxury cruise.

The rub

The simple fact is 2-5 per cent of matters do not settle before trial, that is, that statistic actually applies to people represented by lawyers who end up before a judge.

The crazy workload is coming from the three years spent in Court before the trial. And yes, in a last pitch bid to stop that final trial cost, many lawyers will settle their matters on the day before, or the morning of, a scheduled trial (doesn’t mean they won’t charge for prep).

So even if that settled matter has been in progress for three years, with applications and responses and affidavits and directions hearings and independent witness statements and conciliation hearings and readiness hearings and adjournments … the implication of that 2-5 per cent statistic implies that if it settles before trial it “hasn’t made it to court”.

It sure doesn’t feel like that if you’re involved.

The thing is, the vast majority of cases could be resolved much more expeditiously by genuinely not going to court. That’s not just not going to trial, that’s not filing any applications in the first place.

No applications mean there’s nothing there to clog up the system and couples are genuinely negotiating between themselves.

Legal process

I had a lawyer recently tell me that the only way to get any deadlines in a family law matter was to file initiating applications which put pressure on the other side to respond. I regularly get letters and emails from lawyers opening with their genuine desire to negotiate and ending with a threat to take the matter to court.

Does anyone respond well to threats and ultimatums?

Imagine your relationship is over, you are taking some time to get your head straight and wham you are served with Family Court papers. It seems your ex thinks you are taking too long.

Are you likely to think: “Goodness me, she’s right I’d better get on with this and do what she wants (again)”?

Or do you reckon it might be more like: “Bloody hell, now I need a lawyer, which I can’t afford, but I don’t have a clue what’s going on and if she wants a fight she can damn well have one”?

Court deadlines are fickle – you are at the whim of an overworked system that readily grants adjournments – and you are straight into a full-tilt adversarial arena.

It might feel like your ex isn’t doing anything, but getting gladiator lawyers and the court involved never made anyone more prone to conciliatory negotiation.

There’s another way

At some point you are going to need a lawyer – to make sure your agreement is legally binding and to check that everyone knows where they stand and how their future looks. But there are lawyers, and legal processes, that genuinely commit to never going to Court, not filing documents, not getting on the train – even with the “hop off at any time” promise.

Trained collaborative lawyers run practices based on engaging both sides in non-litigious negotiation. At the first collaborative meeting all parties – the couple and their respective collaborative lawyers – sign an agreement with all committing not to go to Court.

Mediation processes will often stipulate they will come to an end if either side threatens Court action.

It’s not always easy but it can be done and when it is, the outcomes are more likely to be genuinely client-focussed solutions, engineered by the parties themselves.

Different strokes

Some people have to go to Court. A few may even want to. A collaborative process is not for everyone. But let’s be very clear about the crisis facing family law in Australia.

As long as lawyers continue to be heavily invested in using the court process to resolve family disputes – no matter at what stage of the matter they opt out – the courts will be under pressure and families will suffer.

Susan Hewitt is the Principal at Bright Side Family Law, a non-litigious family law and mediation practice. Susan has worked as a lawyer and journalist for almost 30 years. She is an accredited collaborative lawyer and family-law mediator who is committed to helping families through their relationship breakdown in an honest, cooperative and respectful manner.

If you are facing a family law matter call or email Bright Side https://brightsidefamilylaw.com.au/contact-us/