The Impact of Delays Within the Court System for Family Law Litigants

This blog entry is absolutely not intended to criticise the Judges who handle family law cases – they do the best they can given the level of resources allocated to the Court by the Federal Government in circumstances where the demand by litigants for Court time is greater than the time available as a result of the level of allocated resources.

Having said that, the fact remains that for litigants attending their first interview with a family lawyer, it is important that they be advised of the process of litigation, how long it will take and the likely impacts of delays upon their matter.

Presently, there are lengthy delays in having trials heard and determined. Practitioners should be giving their clients estimates of approximately 2 yrs to conclude cases. In some instances, a longer estimate is warranted.

What clients should also be told about is the availability of mediation and arbitration for their disputes.

Delays in family law mean increased financial and personal stress, a longer period of disharmony and litigation position-taking (which on many occasions leads to significantly higher conflict in the effort to win), increased legal costs and a variety of other personal emotional impacts. People prone to depression will get worse and anxiety will rise.

For the family law matter itself, it usually means that the case is “prepared” and “re-prepared” a couple of times and valuations often need to be obtained on a first instance basis to enable early negotiations but later updated proximate to hearings and Court events. A number of “tax years” or “financial years” will expire, meaning the use of accountants so as records are all up to date so as the Court proceedings do not leave out tax issues. Accounting reports and any expert advice (whether, for example, medical reports about parties’ health or taxation advice) are often required to be obtained and updated also, given health changes with time and businesses and income pursuits (giving rise to tax) do not stay frozen in time or marking time whilst a family law proceeding is managed by the Court.

The length of proceedings also impact parenting matters, given the fluid nature of children’s relationships with parents – routinely in lengthy cases, the changes in age and development of children means their wishes are forming and developing and may be given more weight than at commencement. There is also an extended period of time during which events which impact normal families are under the scrutiny of a Court – making for a somewhat stilted life which involves a parent second guessing and reflecting on how a Court will perceive parental decisions and how a party might be “called out” over one or other decision made for the children.

For our clients, we foresee many more cases needing to be considered for settlement because of the sheer cost and time involved in maintaining a case from start to finish.

The only way to curb this is to take up with your Federal Member of Parliament to complain about the family law legal system’s resources. Recently we blogged about Court filing fees going up, yet the filing fees not being allocated as resources back to the Court to try and fund itself. We certainly felt that a budget measure designed to increase costs for separated families filing Court documents and Court applications was not on, unless it was being allocated to fund increased and improved resources for the Court.

On current trends, it seems highly likely that an increased focus will be upon mediations and arbitrations. There is support for the view that the Court should actively set out trying to refer some issues before it to arbitration to allow it to concentrate on case management and reducing delays. Unless something is done, there is a risk that a party who has the ability to wait for a delayed matter to conclude and to fund a lawyer for that length of time, might be able to gain an advantage over someone who needs the matter to end for emotional or funding reasons. The level of resources is therefore at risk of being self-limiting of an ordinary person’s ability to seek access to justice in family law.

Thanks for reading.