Court First, Ask Questions Later?
Perhaps not - an important and potentially costly lesson for failing to negotiate first.
In a recent decision in England the Court took time to comment on the importance of considering the alternatives to litigation. That Court said:
"We do not single out either side's lawyers for particular criticism.
What followed was due to the unfortunate culture in litigation of this nature of over-judicialising the processes which are involved.It is indeed unfortunate that, the process having started, instead of the parties focussing on the future they insisted on arguing about what had happened in the past… the parties should have been able to come to a sensible conclusion as to how to dispose of the issues which divided them. If they could not do this without help, then an independent mediator should have been recruited to assist.
That would have been a far cheaper course to adopt.
Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible."(emphasis added) (Lord Woolf, Dyson & Field v Leeds City Council (unreported 29 Nov 1999)
Do some parties litigating in the Family Court share the same “unfortunate culture” of over-judicialising the processes in which they choose to be involved?
Probably.
Does society, Government and the Family Court want to change that culture?
Definitely.
The stance of the Family Court and Government
The previous Federal Attorney-General, Darryl Williams, took several opportunities to comment on the desirability of parties using alternate (now sometimes referred to as primary) dispute resolution processes.
He did so in published statements and in addresses at national conferences, press club lunches and other public occasions.
Recent proposed amendments to the Family Law Rules (“the Rules”) and the Family Law Act (“the Act”) foreshadow adverse cost consequences of failing to negotiate prior to filing an application in the Court.
If the new Rules are adopted by the judges of the Family Court of Australia, it is certain more people will be required to engage in PDR processes and that more lawyers will actively encourage them to do so.
Despite the active promotion of ADR/PDR by the Federal Government there is scant evidence to suggest lawyers are actively promoting the use of formal ADR or PDR by their clients.
Indeed, a recent informal survey indicated that, since the Counselling services within the Family Court itself were reduced, the number of referrals by lawyers to community, Government funded or private counselling sessions had reduced dramatically.
There is no direct obligation on lawyers under current legislation to advise clients about mediation, arbitration or other forms of ADR processes. The legislation simply imposes an obligation for them to “consider advising clients” about the possibility and relevance of PDR.
Proposed changes under the Family Law Amendment Bill 2003
The proposed rule 5.03 of the Family Law Amendment Bill, 2003 currently before parliament states:
1. Before filing a Form 2 (an application for interim orders), a party must make a reasonable and genuine attempt to settle the issue to which the application relates.
2. An Applicant does not have to comply with subrule (1) if:
(a) Compliance will cause undue delay or expense;
(b) The applicant would be unduly prejudiced;
(c) The application is urgent; or
(d) There are circumstances in which an application is necessary (for example, if there is an allegation of child abuse, family violence or fraud)
3. The Court may take into account a failure to comply with subrule (1) when considering any order for costs.
What does it all mean?
Recent case law in England , similar movement in the Supreme Court of Western Australia and these proposed amendments to the Family Law Act and the Family Law Rules are sending a strong message.
The message is that parties who litigate in the Family Court without first attempting to negotiate a settlement, or who fail to make genuine efforts to settle during proceedings, will do so at their peril and at potentially increased expense.
November 2003
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