Separation and family breakdown give rise to many demands and stresses for Australian families. Changes in our economic climate and social fabric have made these pressures increasingly complex and difficult to resolve, often overlapping with issues of family violence, mental illness, drug and alcohol abuse, financial insecurity and housing uncertainty.
Changing family structures have also expanded the range of people who may be affected by family breakdowns. Increasingly grandparents, same-sex families, blended-families, inter-generational families and other related care providers are becoming involved in family law disputes.
This rising demand for family law services has driven legal costs upwards and placed significant pressure on the community justice sector. As a result, a serious and significant access to justice gap has emerged. Those who face the most severe financial disadvantage can access legal support through state-based legal aid schemes. Wealthier individuals are able to engage private legal representation. However, there is a sizeable and growing group of people in the middle, who struggle to obtain the legal services they need.
Although there is substantial diversity within this group, legal aid funding cutbacks have meant that more and more families from disadvantaged or vulnerable communities with complex needs and high-risk issues are being driven into this ‘gap’ group. Community legal centres play an integral role in assisting these families; however, the financial and resourcing pressures on community legal centres mean that many are unable to access legal assistance.
Similarly, those in the gap group may be screened out of accessing family dispute resolution in government-funded mediation centres because they do not meet the stringent criteria. As a result, more matters reach the Family Court and Federal Circuit Court that could potentially be resolved without litigation. In some matters that reach trial, one or both parties are self-represented, making the just, timely, and cost-effective resolution of the dispute more challenging.
Could legal innovation provide some relief?
Disruption and new technologies are transforming the way business is done, including legal business. Features like e-discovery, document automation and fixed fee billing are becoming a natural part of commercial law; however, family law lags far behind. The College of Law wants this to change. Its Centre for Legal Innovation, an innovation-focused think tank established in 2016, aims to support legal professionals as they navigate the evolving legal landscape. One of the centre’s current projects is looking at ways that disruption and new technologies can be harnessed to achieve greater access to justice in family law.
The project is only in the early research phase, but one idea being bounced around is the establishment of ‘mediation clinics’, to be conducted at participating community legal centres. The clinics would service those clients that cannot afford private mediation but have been excluded from accessing government-funded family dispute resolution services. The mediations could be facilitated by family law barristers, possibly on a modest, fixed-fee basis. In some circumstances, it may be possible to conduct the mediations using online ‘meeting rooms’, like Zoom, Webex or Legaler.
Integral to the project is the exploration and application of emerging legal technologies. The disruptive effect of the ‘gig-economy’ on traditional business models presents exciting possibilities to make it easier to select, access and engage with barristers and mediators.
Family law future forecasting
An increased use of mediation would tie in well with the findings of the Australian Law Reform Commission, which released its final report in April 2019, following an extensive review of the family law system. The ALRC report comments that “a policy shift to support greater use of non court-based mechanisms in order to support families to use a lower-cost, lower-conflict avenue for property and financial matters is generally thought to be desirable”. The report has made several recommendations for enhancing pre-litigation family dispute resolution, particularly in non-complex property matters. This suggests that funding and additional resources may be forthcoming in the future to expand alternative low-cost models.
It is well recognised that pro bono or ‘low bono’ legal assistance provides essential support to those unable to pay full fees for legal or mediation services. While the central purpose of these systems is to increase access to justice by addressing unmet legal needs, there are tangible flow-on benefits to the legal sector as well. Low bono briefs give counsel the opportunity to develop new referral pathways and professional networks, to build relationships with solicitors across different sectors and to gain exposure to a diverse range of clients and matters within and across a practice area. For mediators, a community-focused mediation model would expand the options for completion of mandatory accreditation hours.
With court intervention seen as the last resort, in most cases, for disputing families, innovation in pre-litigation family dispute resolution is to be watched with interest: seeking a less adversarial resolution of property disputes—and possibly also parenting disputes—may create a whole new world of opportunities for barristers.
This blog was first published as an article in the Victorian Bar News Winter Edition 2019 and we gratefully acknowledge the Victorian Bar Inc for their kind permission for re-publication.
About the Authors
Talya Faigenbaum is a lawyer, innovator and changemaker. In 2015 she founded a start-up law firm with a vision to designing new ways of practicing family law. Through a combination of innovative approaches and a disruption of traditional legal practice models, Talya supports her clients navigate the difficult journey through divorce towards achieving holistic and real-world outcomes. Talya is also a passionate advocate for access to justice. As the current CLI Research Fellow, Talya's project is exploring the application of legal technologies, cross-sector partnerships and design thinking to address fundamental access to justice gaps in the family law space.
Annette Charak is a Victorian barrister accepting briefs in all commercial matters as well as tax and family law matters. She brings her strong analytical skills and extensive experience of writing, editing and training to her work as a barrister. Immediately before coming to the Bar, Annette ran her own consultancy, training lawyers, particularly in non-English speaking countries, to improve their written communications. She had previously worked at Allen & Overy in Brussels where she founded an English language legal communication team. Annette has also edited a broad range of LexisNexis publications and has written for CPDinteractive.com.au and the Australian Intellectual Property Law Bulletin on tax matters. Annette is a current editor of the Victorian Bar News.