Chief Justice Will Alstergren vows tough new approach in family court
Ignoring court orders or intentionally dragging out disputes will not go down well with Australia’s new top Family Court judge, he warns, as he prepares to blitz a backlog of outstanding cases.
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The Family Court’s top judge is warning anyone, including lawyers, who unnecessarily string out disputes will be in his sights as he moves to slash a backlog of cases.
Chief Justice Will Alstergren said he – and his judges – would “come down hard” on any party who failed to comply with court orders.
He has also told the Sunday Mail he has little tolerance for practitioners who engage in tactics to draw out a case.
“Unlike any other area of the law, (family) law suffers from one fundamental problem; for some reason, people assume they don’t have to comply with court orders, that includes practitioners,” Chief Justice Alstergren said.
“Sometimes they do it as a tactic, other times it is because of a lack of resources and thirdly it is out of laziness – well that is all going to change.
“The clear message is this, there will be ramifications in the future for people not complying, because if one party has gone to the expense and trouble to comply, it is totally unfair for the case to have to be adjourned because the other party hasn’t complied.
“We are going to be putting pressure on people and if we detect that someone is engaging in that kind of behaviour, they will get a pretty short shrift from us and so they should – they may end up with a cost order against them personally.”
Both the Law Society and private lawyers have recently raised concerns about the expected spike in divorces and subsequent child custody and asset division court cases in the wake of COVID-19, adding pressure to an already strained system.
In response, Chief Justice Alstergren, who also heads up the Federal Court Circuit which hears the less complicated family court matters, has announced a “blitz” in which 88 of the state’s oldest cases will be heard over four days this month and next.
The Melbourne-based judge will preside over 44 of them himself, on July 20 and 21, hearing details of the case status electronically via communication and collaboration platform Microsoft Teams – in August Queensland’s Michael Jarrett, will address 44 others.
“They are going to have their clients listening and I want to make sure their clients know exactly what is going on and, from my point of view, I want to know exactly what is happening so I can assign resources to it,” Chief Justice Alstergren said.
“If they don’t settle then I will be ordering them to trial very quickly.
“If I need to, and the case can be heard electronically, they can be heard by judges in other registries, so it won’t just be all put on the poor old judges in Adelaide.”
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Chief Justice Alstergren said he welcomed initiatives such as amica, the online dispute resolution tool designed to help separating couples to agree on financial and parenting arrangements, announced this week.
“I can assure you, thinking about how often people have to wait for their trial when they shouldn’t have to wait does keep me up at night,” he said.
“We are very keen on any type of alternate dispute resolution that avoids court.”
It is a sentiment shared by veteran Adelaide family and divorce lawyer Wendy Barry.
“Almost universally, clients report that their lives are on hold until their cases are concluded,” the partner at Tindall Gask Bentley said.
“For many, if their matter runs to trial the expectation is that a trial will bring to an end the state of limbo but judgments are often not available for six to 12 months after the trial ends.”
COVID-19 and our courts
Chief Justice Alstergren said a range of initiatives introduced in the wake of COVID-19 would be maintained and further developed post pandemic, including priority lists of high-risk family parenting cases.
He said he was proud the clearance rate in the Federal Circuit Court during the COVID crisis had been maintained at over 85 per cent.
“It is probably the highest clearance rate of any court in Australia,” he said.
“The Adelaide registry, for example, has done 450 final order applications despite not being able to have face-to-face hearings and they had done 670 interim hearings.”
One mum’s fight for justice – and her family
My experience with the Family Court has involved a narcissist.
Unfortunately the delays and waiting times in the Family Court system play into the narcissist’s hands.
The Family Court is powerless as court order after court order is not complied with.
This drags it out even further and you are able to be financially-abused through the court system, long after you have finally had the courage to leave a domestic violence situation.
The emotional toll it takes on you is devastating.
The anxiety it causes not only for you but for your children is indescribable.
You feel like no-one hears you – no-one listens to your children.
The court is supposed to have the children’s best interests at heart, but when dealing with this, it is their best interests that are really forgotten.
Education needs to be given to all magistrates/judges/court workers in relation to personality disorders so that they can recognise the games that are played within the court system and an end is put to it.
It’s the only way we will unclog the court system. It is a narcissist’s playground.
The anxiety issues that come along with this process, stays long after you have finished in court.
It manifests in so many ways and affects your children’s daily lives.
I have had one child try to hurt themselves three times while going through this.
It is your worst nightmare and you feel helpless because the system can’t help you.
The most important thing is your children and you need to keep going for their sake … but you want to give up every single day.
It is something I would never wish on anyone and I really hope someone tries to change the system before lives are lost because of it.
– This mum of three, a domestic violence survivor, spent more than five years fighting for custody of her children before having the case resolved recently. She says the process has broken her financially but she is grateful her children are alive and healthy.