How the family courts merger impacts the ‘Hunger Games period’

How the family courts merger impacts the ‘Hunger Games period’

05 January 2022 By Stefano Cammarano

In the wake of the new Federal Circuit and Family Court of Australia, collaboration and efficiency are shaping up as more common features of legal practice, writes Stefano Cammarano.

This time last year, myself and three other family lawyers around Australia spoke with Lawyers Weekly about what we call the “Hunger Games period” – that is, the last calendar month of the year – when separating families want to get their financial arrangements sorted so they can start the new year afresh, and also one during which courts are overburdened working out care arrangements for children over the Christmas and school holiday period.

To read those stories, click here and here.

This year, there have been a number of changes to the family law space, including the merger of the family courts into one unified Federal Circuit and Family Court of Australia and the new Federal Circuit and Family Court of Australia (Family Law) Rules.

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In the wake of these changes, family lawyers have now been required to utilise a different approach that encourages alternative dispute resolution and the expeditious management of matters before the court.

Christmas has come and gone, and just when I thought things couldn’t be busier, there is always another thing popping up that is required to be actioned early. Whether it be filing consent orders with the court prior to their closure, urgent attendances at court to obtain orders relating to time with children, or preparing documents for a mediation or arbitration, I feel like I have gone through the entire Family Law Act in one week.

No matter what you do for work, and regardless of whether you are a lawyer or not, Christmas can be an incredibly stressful period. I know for myself, simply getting to the shops and purchasing my Secret Santa present has seemed like I’m preparing for an expedition to the Himalayas. There’s limited time to get things sorted, most offices are closed until mid-January, the courts are closed for filing, and with COVID-19 restrictions easing, we all just want to spend our summer doing all the things that we weren’t able to before.

In light of this hectic period, I recently reflected on the “Hunger Games” period pieces from last year and thought to myself, “wow, things have changed”.

For many practitioners (and those that are studying family law), 1 September 2021 will be a day that will be remembered for a long time.

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On this day, when the legislation became effective, it signified a change by the courts that administer family law and justice. With changes in practice and procedure, the court’s transition resembles a push for parties involved in a family law dispute to resolve their matters through alternative dispute resolution.

With the new pre-action procedures relevant to both parenting and property matters, there is an active encouragement by the court, and inherent within its new processes and procedures, for parties to make genuine steps to resolve their dispute outside of court and through alternative dispute resolution.

As a collaborative family lawyer at Kalpaxis Legal, this has been an approach that we have been utilising for quite some time, so you can imagine the glee and (yes, nerdy) excitement that erupted once we’d heard of this change. It signified not only a change to how we act as lawyers but also a change to how disputes of this kind are met and approached in the court system.

For many out there who are going through separation and divorce, the concept of court is something that is intimidating, threatening and usually attributed with high fees, lengthy delays and increased stress. I believe that these changes have been able to set the tone for how the family law space is perceived by both the general public and legal practitioners, how it is to operate and how it is managed moving forward.

Firstly, why the changes?

The Attorney-General’s Department has argued that the proposed merger aims to address issues associated with the significant caseload and backlog of the courts. It is not a disputed fact that the court is (and has, for most of its time) experienced immense pressure with several waiting lists, dates allocated months (or sometimes even years) down the track and limited resources respective to the demand.

As stated in the Attorney-General’s Department’s submission to Senate legal and constitutional affairs legislation committee, “since 2014-15, the age of pending applications in the Family Court also increased from 28 per cent being at or older than 12 months, to 38 per cent being at or older than 12 months in 2018-19”.

The court’s backlog is statistically increasing, and one can argue that the change in policies and procedures have been enacted so as to ensure that the pressure the court is currently experiencing is not only alleviated but also so that the court can exercise diligent judicial determination for those matters that require it.

It’s important to remember that not every matter requires court intervention. Certainly, there are exceptional circumstances that can mean that one’s separation ought to be judicially determined by the court, but this is not a common occurrence. The pre-action procedures set out where these circumstances may arise.

The act also sets out what’s known as the overarching principle”, which, in short, is the just resolution of disputes according to law and as quickly, cost-effectively, and efficiently as possible with efficient utilisation of the court’s resources, management of proceedings in a timely manner and resolution of matters corresponding to its complexity and importance.

What is my view on the changes?

Whilst these changes mean that family lawyers are required to undertake a large number of new tasks and responsibilities to comply with the new rules, policies and procedures and parties to a dispute may have a few hurdles before filing an application with the court, I am of the view that these changes are for the better.

When taking into consideration the overarching principle and the purpose of these changes, I believe that we will see a significant rise in these types of disputes being resolved earlier, cheaper and in a manner that is much more facilitative, collaborative and holistic. It’s certainly been the case that I have witnessed this firsthand, especially during the “Hunger Games” period.

With the three months that have elapsed since the enactment of the new rules and procedures, I’ve found that legal practitioners are coming together and encouraging their clients to attend a mediation.

There is no doubt that if one’s particular dispute requires the court’s expert determination, that would be better facilitated in circumstances where the backlog will have been decreased. For matters that have arisen with circumstances such as urgency, lack of disclosure and allegations of significant family violence, which mostly require the court’s intervention, these issues have been able to be triaged by the court in a manner much quicker than previously achieved last year.

To this, I do believe that it is because of the new procedures. The allocation of certain matters filed in court to certain lists such as a COVID-19 List and a National Contravention List, the results achieved have not only been astounding but have been very efficiently managed.

In short, I say that the changes have allowed for efficient management of matters that require the court’s intervention.

By the same token, the changes have also been able to positively promote the cost-effective and timely resolution of disputes for those who had previously already been involved in the court process or who were contemplating taking the next step.

It is a common occurrence that in the lead up to the Christmas period, parents are aiming to secure time with their children. However, they not only want to secure this time, but they want to do so in a manner that is quick and cost-effective. Due to these changes and the limitations encompassed in the pre-action procedures that relate to filing in court, I have seen many involved in a dispute attend upon a mediation or family dispute resolution within a matter of weeks and reach a result that everyone can agree on.

What I find most personally gratifying is seeing the smiles of happy families and happy children, knowing that they’ve been able to achieve a holistic resolution at Dispute Resolution Centre Australia at a fraction of the price and a minute proportion of the time compared to litigation. What I also find is a benefit of these changes is that parties to a dispute are now taking control of their narrative.

It’s important to remember that everyone’s separation is unique, and there is no one-size-fits-all approach. By taking parties to a dispute outside of the court process, there is greater flexibility in the process to cater for the specific needs and individualised circumstances of the parties that are involved, including the children. With reference to the “Hunger Games period, we’ve seen an influx of inquiries from parties wishing to resolve their dispute as soon as possible so as to venture into 2022 with peace of mind and clarity.

I really do believe that the changes that have been made are fulfilling the overarching purpose stated earlier above, and the results are clearly visible when you see the smiling families of separated families all around you.

I highly encourage you, if you are thinking about taking the next step in your separation journey, to consider the multitude of pathways that you can utilise that aren’t court. I urge you to seek legal advice in relation to your obligations with the new rules and procedures, which essentially are there to provide you with lower costs, less time expended and a more positive outlook on life with minimal stress having been experienced by you.

If you are a lawyer, remember that we are a community of like-minded professionals who all have to follow the same rules, procedures and policies. In accordance with our duty to the court, let’s come together and collaborate to ensure that we are fulfilling the goals, objectives and purposes of the court. Let’s change the landscape of what it means to be a lawyer in the family law space, especially during Christmas – the season of giving.

In conclusion, whilst there certainly still is a “Hunger Games” period in family law despite these changes, it is more so a period that is not defined by vengeance, insanity due to wars, arguments or fights, but rather, collaboration, peace-making and efficiency.

Stefano Cammarano is a collaborative family lawyer at Kalpaxis Legal and the business concierge at Dispute Resolution Centre Australia.

How the family courts merger impacts the ‘Hunger Games period’
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