As we approach Good Divorce Week - an initiative introduced by Resolution with the aim of raising awareness of the different ways that families are able to resolve disputes away from court when it is safe and appropriate to do so - it seems appropriate to echo the sentiments raised recently by the President of the Family Division, Sir Andrew McFarlane, who suggested that for many separating couples there may be a way to “separate smarter”.
This year’s Good Divorce Week seeks to highlight the crisis facing the family courts at present where, due to their overstretched resources, there is a huge backlog of cases and families are frequently left waiting for long periods of time to resolve their matters.
A notable theme of recent focus, following the publication last year of ‘What about Me?’, a report by the Family Solutions Group, is the need to reduce the pressures on the court system by reducing the number of private disputes reaching court.
The report suggests this aim could be achieved by diverting cases which would be better served by not going to court.
"You can separate smarter" is a phrase promoted by the Australian court, in material aimed at improving the understanding of separating parents of their own position and how best to face the future.
For parenting matters in Australia, family dispute resolution is, with limited exceptions, compulsory before an application can be filed.
Dispute resolution includes negotiation through lawyers, collaborative practice, conciliation, mediation or FDR and arbitration. Before and during proceedings, both parties are expected to look for other options to resolve disputes.
There are over 80,000 current applications for disputes involving children, and on average it is taking 44 weeks for each dispute to be resolved.
For a significant proportion of these cases, there has got to be a better way to resolve the dispute.
No one would seek to deny that there are cases which do need court intervention, however the question we must all consider is whether there is more that we as family lawyers can do to utilise the ever-evolving range of non-court options that we have available to us.
It is more important than ever that those at the coalface know about the full range of non-court options available to separating families and can explain these in a clear and simple way, to improve the experience of separating families, reduce costs and delays, and help achieve better outcomes.
There is a growing body of recent cases which demonstrate frustration on the part of the court about the level of legal costs and the way in which matters are being conducted, with a leaning towards more robust case management and increased willingness of the court to impose costs orders where there has been an unreasonable refusal to negotiate and/or engage in an out of court process.
HHJ Wildblood QC put it starkly in B (A Child) (Unnecessary Private Law Applications): “Therefore, the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.”
Good Divorce Week provides an excellent opportunity for reflection and an inspiration for change. We are excited to join in debate as so many of our colleagues take up the challenge thrown out there by Sir Andrew McFarlane to see what more we can do to help separating families "separate smarter".
It is a topic that deserves more attention than can possibly be shone on it in one week, but Good Divorce Week provides a focus point for us pause and see what more we can all do to help separating families put children first.
Our specialist family and divorce solicitors can advise on all aspects of separation, including financial arrangements and arrangements for children.
If you would like to speak to a member of the team, please contact us (Holborn: 020 3826 7526, Kingston: 020 3826 7527, Putney: 020 3827 7520) or complete our online enquiry form.