Should I be concerned about having to go to Court to finalise parenting arrangements?
There is significant misinformation in mainstream media about “the family law system” and what happens if people end up in court – especially with the backdrop of the ongoing policy debate about the merging of the specialist Family Court with the lower-level Federal Circuit Court.
Some of the stories being published in newspapers and on television are about lawyers who are described as “self-interested”, pushing families unnecessarily into the Family Court system and exploiting them financially. Those reports do not describe the lawyers I know nor the world we work in.
So when the AIFS – The Australian Institute of Family Studies – recently released their findings about parenting arrangements after separation (with a sample of 6000 separated parents) showing that only about 3% of families used Court to have their parenting matters resolved, it made clear what experienced family lawyers know – most people experiencing separation don’t go to Court.
Who are the AIFS? Why is this research credible?
The AIFS is the Australian Government’s key research body about families, which was created to provide information to government and those involved in the field about what is working for, and what is happening to, families in Australia. They do longitudinal studies to track, better understand and inform policy about the protection of the family as the fundamental group unit in society.
What else does the research tell us?
We know from earlier AIFS research, that of separating couples in Australia, about 70% manage to work things out themselves – that is, they make decisions about children and property without going to formal dispute resolution processes or seeing lawyers. Some people engage a little in getting help from mediators or lawyers to nut out some parts of their settlement and see lawyers to help make documents to finalise their deals.
So who does end up going to Court to settle parenting arrangements?
Of those 30% who end up seeking help to work things out (and who might see lawyers at that time) only a small percentage of them end up in Court, due to the complexities in their circumstances. The AIFS studies tell us that these “extra complications” can include issues of domestic violence, alcohol or other substance addictions, mental health challenges and sexual abuse allegations. Sometimes the relationship dynamic is pretty fraught too and getting to an agreement is harder, without the help of someone else. So, the cohort of people who end up turning to family lawyers have more complications in their lives, their needs are more complex and they need help from lawyers to protect their interests or those of their children.
This recent AIFS research shows that of parenting cases, there is only a really small percentage of people who need to take their parenting matters to Court. Most parenting disputes are being settled independently, with the advice and negotiation skills of lawyers, with the support of dispute resolution processes and considerably fewer require the intervention and structure of Court responses.
There still persists for many, a perception that the Family Law Courts are biased against men. The AIFS research challenges that complaint. Of the small proportion of parenting matters determined by the Courts, orders for “no contact” between children and their father occurs in only 3% of cases, compared to 9% in the general separated population.
In my experience, with over 27 years in Family Law, there are so very few cases where parents do not get access to their child. It is reserved for those cases where the Court has compelling evidence that there is an unacceptable risk of harm to these children if contact was to occur. It is (appropriately) rare.
We also know from our experience (and backed up by research) that of the families who start a Court process, very few go all the way to a final hearing. This recent AIFS study reinforces that less than 5% of cases started in the Family Law Courts will go all the way to trial.
Overall, this AIFS research reinforces that the Court remains a pathway of last resort and that most people are able to work things out. Lawyers want to help their clients find a settlement (and encouraging options for dispute resolution is one of the duties we hold under the Family Law Act). Yet, it is hardly the narrative being played out in mainstream media and in Parliament.
Who seeks the advice of Family Lawyers then?
The consistent message from the AIFS research is that most separating people will work things out themselves; some will need a bit of help from dispute resolution providers; and a smaller number again will need the help of lawyers. About 13% of parents trying to sort out the care arrangements for their children will engage the support of counselling, mediation, family lawyers or other dispute resolution service, to help them come to an arrangement. Going to a lawyer does not mean going to Court – many settlements occur because of and with the assistance of experienced family lawyers, who advise about and guide reasonable and realistic expectations of outcome.
This AIFS research reinforces that family lawyers are helping people to come to settlements by the application of our knowledge of the law and negotiation skills, to facilitate sensible and timely outcomes. Lawyers are regularly engaged to help parties to work through things and to find the right process to settlement, with expert knowledge of the legal framework and risks and benefits of different approaches. Negotiating within the framework of what a court might do, if you took that pathway, is essential. Setting realistic expectations of what might be achieved, and how to get to that outcome, is important, while maintaining, as far as possible, the framework for a co-operative parenting relationship into the future.
Why see a Family Lawyer?
Many people make contact with us because they are either considering separation, part-way through their negotiations or are starting to think about starting negotiations. In the context of parenting, people seek our advice about how to approach these discussions and appreciate guidance about the framework in which to manage those discussions.
Sometimes people have concerns that they need clarified and see value in obtaining advice to assist their thinking and how to shape their own direct discussions. This is usually a good investment in the success of their own long-term successful negotiations.
In other situations, where the challenges are more complex or the power imbalance greater, a person may need an advocate, to engage and persuade on their behalf. Being supported in ongoing negotiations can help enormously in ensuring your voice is heard. Lawyers bring a depth of understanding of the complex legal, social and other considerations and implications of particular choices that routinely arise in family law matters.
The goal is to reach an agreement that is good for our client and their children. Using experienced family lawyers with specialist dispute resolution training to bring about those outcomes is highly effective.
We routinely advise and assist our clients to think about and engage in different dispute resolution pathways – without a lawyer or lawyer assisted. We help put people in touch with mediation or counselling providers for themselves and or their children and also help them understand what to expect of the process. Importantly, we also help them understand the importance of, and the different ways of documenting or formalising their parenting arrangements.
DDCS Lawyers specialise in all aspects of family law and can advise you on shared parenting matters to help you reach the best outcomes for your children. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.