In an article from Western Australia on its Family Court claims that families are waiting for an average of two years to have their disputes go to trial and cites that there is a current back log of approximately 600 cases awaiting trial in that Court. Unfortunately the delay to having a case heard does not include the time it may take to receive a decision from the presiding Judge and have that decision given effect, nor does it take into account the pre-action procedures, which are now mandatory before most cases are filed with the Court. The total amount of time for cases which require the Court to make a decision appears to be closer to three years from the time the dispute first arises.
Justice Thackray, in a recent judgment, blamed a lack of resources and apologised for “undoubted anxiety and inconvenience caused by the delay in delivering a decision”.
I would like to take a moment to give consideration to the consequences of such a delay:
- In children’s matters, the children literally grow up during the proceedings which means the issues that were in dispute at the commencement of the litigation may have been surpassed and new issues arise.
- It could not be, on any view of the situation, in the children’s best interests, which lies at the heart of all family law matters involving children, to be growing up in such immense uncertainty.
- In contested litigation, the longer a case takes until it is determined, the more it is bound to cost both parties involved. The weeks do not tick by in litigation without anything happening and without any legal costs being incurred. Of course there is correspondence between each solicitor and their clients and each other, not to mention with the parties’ respective barristers and the Court. All of this adds to the burden upon the fractured family.
- In cases involving property settlement, again, things change as time ticks by. People spend money on living expenses, borrow money, buy homes and sell them, change jobs, superannuation values change, people get sick and in some cases retire. This is only a small snapshot of things that can take place making an already difficult situation substantially more complex.
- In the main people are substantially prevented from getting on with their lives.
- The government’s recent focus has been on compulsory mediation through the establishment of Family Relationship Centres and the requirement of parties to attend a family dispute practitioner in children’s matters before being able to file any application with the Court. I agree it sounds like a good idea, trying to stop the problem before it starts and gets into the Court system. Unfortunately I don’t think it is working as well as certain political interests would have us believe.
The statistics of settlement as a result of the compulsory family dispute resolution need to be seen against a backdrop of the historical settlement rate of family law disputes before the compulsory family dispute resolution was introduced.
Historically, as I understand it, 85% of all family law disputes were resolved without involving the Court in the decision making process, although the Court did formalise many of these agreements through consent orders. Of the 15% of cases which did get filed in the Family Court only between 2 and 3% required a judge to determine the result. The balance were settled prior to hearing. The situation as identified in Western Australia now has it that because resources have shifted so significantly to settling cases before Court, there are not enough court resources to handle those matters that cannot be agreed. The proportion of cases settled as a result of family dispute resolution has not increased significantly but leaves the cases using the court system in a dire state. As the old adage goes “justice delayed is justice denied”. Further, it can not seriously be claimed that any proper service has been given to the number of parties which as a result of delay and increased costs simply give up or compromise because their circumstances no longer permit them to live with the uncertainty over a two to three year wait.
In my view a large number of matters settle because of the pressure created by having a court hearing or decision soon approaching. Making sufficient resources available to reduce the hearing back log to approximately nine months from filing a dispute would allow sufficient time for a case to get ready and have ample opportunity to settle without the hardship, financial costs and delay. The economic costs on society of having so many families live in the purgatory of uncertainty would also be reduced.