The recent cut in the number of Family Court judges, alongside changes to the Family Court system, has further challenged the work of family lawyers and their clients. Briana Everett reports

The latest cuts to the number of Family Court judges, revealed via Treasurer Wayne Swan's latest Federal Budget, have left many family lawyers alarmed. Some have even declared the move a complete disaster.

The Federal Government announced this month that cuts to Family Court judges will save $10 million under the 2010-11 Federal Budget. And on top of these cutbacks, the Government announced a $43.9 million funding cut to family relationship centres - a further blow to alternative dispute resolution services in Australia.

Getting stuck in the system

The increased pressure placed on the family courts by such a lack of resources adds to what is already an emotionally-charged area of law. For the majority of family law cases, it currently takes at least 12 months to make it through the court system and this is now expected to worsen in light of the cuts.

"It takes a significant period of time to go through the court system. It can take anywhere from 12 months at best [and up to] three or three and a half years," says Slater & Gordon's national practice manager, Aleta Shilton.

Fearing clients will become even more entrenched in the system, Swaab Attorneys partner Marilyn Hauptmann shares Shilton's concern.

"[It's] an absolute disaster ... It's horrible and I don't know if these judges are going to be replaced...the longer you're in the court system, the more entrenched the parties become," Hauptmann says.

Shilton describes the practice of family law as an emotional one, given that family lawyers must deal with clients facing not only the breakdown of a relationship, but also the added financial stress of having to seek legal assistance - which she says will only be intensified if they have to spend more time within the court system.

"[The delays are] a significant concern because peoples' lives have been put on hold for that duration."

Although legal aid received a much needed funding boost this year, family lawyers say the extra funding will not be enough to alleviate the current lack of resources. "The only good thing about having increased funding to legal aid is you won't have as many self-represented people," Hauptmann says.

While family lawyer Peter Berry says the cuts to judges can't be a good thing, he points out how the true impact of the cuts depends on the Government's long-awaited decision to restructure the federal courts - a decision announced just last week.

After announcing in 2009 that the Federal Magistrates Court (FMC) would be abolished, the Government finally announced plans to merge the family law section of the FMC into the Family Court, creating a new lower tier for the Family Court with commissions offered to Federal Magistrates who undertake mainly family work.

Fighting without funding

With no reduction to the workload of the Family Court in sight, family lawyers contacted by Lawyers Weekly agreed that court delays lead to individuals within the system ending up financially and emotionally exhausted, as well as unable to pay mounting legal fees.

"The statistics say that about 95 per cent of cases that are issued in the court resolve by negotiation, but given that sometimes it can take two years to get through the system [because] of delays, to be honest, they are resolving because of legal fees," Shilton says.

Dealing with individuals, Shilton says the issue of legal fees in family law is a significant one and she pinpoints a huge discrepancy between firms and how they charge.

"I think the way that we [family lawyers] charge clients is one of the areas which is going to challenge family lawyers," she says. "We [Slater & Gordon] are trying to explore different options in that regard [to] give more certainty [to our clients]."

Helping to improve access to justice for financially disadvantaged individuals is the availability of litigation funding. According to Hauptmann, despite the additional interest payment, the security that litigation funding provides is well worth it for lawyers and their clients.

"Before litigation funding was around we used to obtain interim cost orders. But what we have found is that although the interest is very high for litigation funders, when you balance it against the cost of going to court for interim costs, it's going to be about the same," Hauptmann explains.

Taking a holistic approach

An encouraging development for family law is the emergence of a new form of legal practice - collaborative law - which focuses on problem solving, negotiation and client empowerment all with the aim of staying out of court.

Adding a new dimension to the practice of family law, collaborative law is perceived by most members of the industry as a valuable and worthwhile approach, leading to more and more lawyers undertaking collaborative law training.

Describing the spectrum of issues that arise in family law cases, Shilton says family lawyers need a significant knowledge base as well as the ability to identify issues and the appropriate professionals to provide expert advice. She says other professionals such as accountants and financial advisors become relevant to many disputes as people's circumstances tend to encompass a range of areas.

"Collaborative law is coming to the fore in family law. It is an area that is very suitable for family law," says Shilton. "In the collaborative process you have a more holistic view and that is a good thing."

Berry agrees that collaborative law is important and worthwhile, but he notes it is suited to particular disputes and particular types of people.

"Like all these things, you'll have those people who will want their matter to be dealt with collaboratively, where frankly they shouldn't, and there will be those who don't want their matter to be dealt with collaboratively, when in reality, it would be a very good thing for them," he says.

And although she sees collaborative law as a positive alternative, Shilton highlights why it constitutes a new alternative, rather than an approach set to revolutionise the practice of family law. "I don't think it is being fully utilised yet because there is one disadvantage to it," she says. "The process requires that you engage in it with a view to settling, which is fantastic, but anything you obtain in that process cannot be used later should you choose to issue court proceedings."