The objective of the merger was to provide greater emphasis within the Court on alternate dispute resolution, and to be able to resolve matters before going to Court. It was said that it would create a cheaper and quicker process. However, if you are a lawyer like us, or if you are going through a separation yourself, unfortunately, we are starting to see many obstacles and barriers that could, in fact, create additional costs and delays.
When going through a separation, most family lawyers and their clients are actively looking to avoid going to Court, unless it is really necessary. This means that the main people that are going to be impacted as a result of this merger are the litigation-keen lawyers because it will take them longer to get their matters to Court, than in the past.
Adjusting to the merger and the time issue we are seeing
In the past, when changes have been made to legislation or court processes, the draft has been provided in advance. This gave professionals working within the system a chance to get up to speed with the changes before they came into effect.
This time though, there was no notice or consultation with lawyers, counsellors, mediators, Court staff or other professionals before the changes came into effect. Essentially, no one saw the legislation until the day it came into effect. Because of this, there has been an additional stress and delay within the family law industry, because everyone is now playing catch up, while actively working within the process.
In the past Judges have managed the cases, but with this new system, Registrars and Judicial Registrars are case managing matters, rather than the Judges. This has meant that we are seeing matters not being dealt with in the timeframes that have been specified.
What happens now, is that in the interest of freeing up Judges, your first day in Court is before a Judicial Registrar who does not have the power to make all the types of decisions that are contested in the Court.
This means that if you have an interim dispute that needs to be determined quickly, for example, about time spent with children or a financial injunction, the likelihood now is that you have a very limited opportunity to have that issue heard on the first Court date. You are more likely going to have to come back on a future date before either a Senior Judicial Registrar or a Judge, depending on the order that you’re seeking.
It would be good, in theory, if the future date could be assigned quickly, but our recent experience has been that the Court cannot allocate this in a timely fashion. This means we are finding that there is a big lag to get a client to their first proper day in Court.
There are still two Courts in action
The merger of the Courts has been positioned as being that the two Courts have merged into one, but that is not really what has happened. There are still two Courts, each dealing with slightly different matters, depending on the complexity of those matters. It is only that you now initially file in the one spot, and the Court decides from there, where the matter is going to be listed.
As a family lawyer, my opinion is that a lot of the changes have been ‘changes for changes sake’. They do not, at this stage at least, seem to be making the system any better for people to navigate in terms of time and cost.
Before the merger, for example, if one person had an interim financial support matter, and the recipient of the request could not come to an agreement, then they would know that their dispute would proceed to Court within a month or two. The writing was on the wall to get to an agreement sooner rather than later. However, what we are now occasionally seeing is people holding out because they know the person who is making the request will not be able to get before the Court and get a decision, for three or four months.
In this instance, the recipient delays reaching any sensible agreement until the very end of the process because the new process is not swift enough to act as a deterrent for them to adopt that approach. As a result, this means the new process slows everything down, further than it was before, when the whole idea was to make the process faster.
A positive from the merger
On a positive note, there does seem to be more tailored assistance to those self-represented people on how to work their way through the system. However, in terms of reaching the objectives to speed up the Court process and reduce cost, this still remains to be seen.
Perhaps once the teething issues have settled and everyone has caught up with the new changes, we will be able to see whether the Court is going to be able to meet the objectives they set out.
