“For the first time in the history of family law, at least in Australia, we have an overarching purpose contained as a provision within our act — the overarching purpose of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible,” outlined Ms Rice.

There is now a uniform set of rules and requirements for practitioners, which asks them to demonstrate that they have meaningfully tried to resolve disputes before they come to court, Ms Rice explained. 

As a result, “the conversation around what it means to be a family lawyer has changed significantly,” Ms Rice told Lawyers Weekly.

“There’s been a real shift amongst the profession to try and identify what might be the best pathway to agreement and resolution,” she explained.  

“We, as a court, talk much more openly about how litigation increases conflict,” she illuminated. “It increases stress and increases risk in those high-risk matters.” 

“It increases expense, and it simultaneously reduces a person’s life to the way the Family Law Act, or how the case law says someone’s life should be viewed.”

“When you narrow the scope of the issues that someone is trying to grapple with, you also narrow the opportunities for solutions that might actually work for them.”

VIEW ALL

This change marks the adoption of an approach where “the courts encourage practitioners to be problem solvers, rather than just legal gladiators”, Ms Rice explained. 

Ms Rice noted that “the impact on lawyers’ work within this space is profound”.

“Suddenly, every solicitor or barrister, every family report writer, every Family Relationship Centre, is constantly saying what might work? What might be the solution? What are the little steps we can put in place now that lead to bigger opportunities for closure?

“That’s a profound shift in the way the courts are expecting lawyers to go about doing their jobs,” stated Ms Rice.

“What the court is inviting practitioners to do is to negotiate agreements productively without needing to come to court,” Ms Rice established. “The court is saying, ‘be a problem solver’.”

Ms Rice discussed how the role of a family lawyer looks in light of these changes.

“The job of the lawyer is to essentially be a dispute resolutionist,” she said, “to help the client to resolve the issues”. 

“The vast majority of clients are motivated by ending a really difficult chapter in their life, bringing it to a close as quickly as possible,” she highlighted

There’s power in “a practitioner who can see a client and identify whether there’s a relatively simple pathway to closure, and ways to get cooperative dialogue happening with the other parties”, Ms Rice said.

“A wise counsel will also be able to identify those matters where it isn’t easy to get traction with the other side, or where there [are] risks associated with entering into dialogue, or where there is some forensic evidence that might, that’s needed in the form of evaluation or expert medical report,” she highlighted.

“It’s about being deeply curious about what the person needs, what closure looks like for them.”

“There are so many reasons why the client wants it to be over. They’re commonly more motivated by that than for their lawyer to take every point on every issue.”

Family lawyers must possess the skill of unlocking conflict, Ms Rice maintained.  

There are many sources and opportunities for reaching an agreement and unlocking conflict, Ms Rice explained, “if the approach of the practitioner is to focus on things that don’t work, leading to disagreement, then there’s the risk of missing opportunities to resolve matters”. 

There remains a need to address risky or complex cases in an appropriate way, Ms Rice noted; it’s the obligation of the practitioner and the court to treat cases with risk components, including domestic and family violence, drug and alcohol abuse, or child abuse, with the respect and sensitivity that those kinds of cases deserve.

For those families, it’s about working that bit harder to create, where possible, a safe environment to negotiate, Ms Rice highlighted, so they can also find closure and exit the system without having to go to trial.  

As opposed to being adversarial, it’s a different way of practising and thinking — to be solution-focused from the very first moment you meet with someone who’s in a situation of crisis, Ms Rice stated.  

“Aggression is not advocacy,” she continued, “you don’t have to have a completely adversarial and aggressive approach to be a good advocate and to protect your clients’ interests”. 

“One of the things that we’ve noticed in the court in the last six months, to the enormous credit of the profession, is that there has been a palpable shift in the way that practitioners are approaching their cases before the court,” Ms Rice illuminated.

“The profession has really begun to unlock what might be the most productive options.”