By Paul Fildes, Principal
As a lawyer who has been practising in the family law jurisdiction for over 40 years, including some 20 years being involved in the politics of family law for the Law Council of Australia and the Law Institute of Victoria, some four months on from the introduction of the Federal Circuit and Family Court of Australia, it occurs to me that the more things change the more they stay the same!
I have observed the substantial growth of the Family Court and its jurisprudence during the 1980s and 1990s and the establishment of the Federal Magistrates’ Court, as a separate lower court in 2000 in response to political pressure at the time only to find that some 21 years later the Family Court and the Federal Circuit Court of Australia have now joined back together to form part of the Federal Courts!
In the meantime, I have seen the introduction and abolishment of pleadings, the establishment of single expert rules based on various civil jurisdictions in the United Kingdom only to observe that they are honoured in the breach in more complex cases, numerous changes to the rules and forms and a wide variety of case management guidelines which involve either lesser or greater judicial intervention.
Whilst learned lawyers in our jurisdiction like to consider and discuss the occasional High Court case, which always creates great excitement, and the inconsistencies in the Full Court authorities, it occurs to me that the real heartbeat of our court, and particularly in the Melbourne Registry, has been the development and growth of private mediations in financial matters. There are now an array of experienced junior and Senior Counsel who specialise in accepting briefs as a mediator, each of them bringing different skills, talent and approach to financial matters. Lawyers who represent clients at mediations have also become more skilled and adept in helping to achieve financial outcomes, which sometimes require a good deal of lateral thinking. Anecdotally, the success rate in private mediations is in excess of 80% of all matters.
During the 1990s and early 2000s some of my commercial colleagues was somewhat bemused by the number of private mediations undertaken in family law matters, but times have changed significantly in the last 10 to 20 years. Commercial mediations are now commonplace which in part has been driven by commercial clients and corporations who can see the commercial and financial benefit of achieving outcomes without recourse to protracted litigation.
The family law profession in Melbourne and regional Victoria have embraced private mediations. In the majority of cases, unlike some commercial mediations, they are not mock trials but rather a genuine attempt to resolve matters on a commercial basis, or at the very least to confine issues. Mediations are now mandated by the family courts of Australia, and Judges and Judicial Registrars alike acknowledge that their settlement rate vastly reduces judicial dockets including many complex financial cases which can potentially take up so much of the court’s time.
Interestingly, the profession in Melbourne has not embraced family law arbitrations but private mediations have remained the real heartbeat of our profession for some 20 or 30 years. I do not expect that to change.
Merry Christmas to one and all during these challenging COVD times.