In conversation with Lawyers Weekly, Mark Parker, family and relationship law partner at Lander & Rogers and recent Family Law Partner of the Year at the Partner of the Year Awards, spoke about the evolution of family law following the rapid growth of the firm’s family law practice.

In 2019–20, the Family Court of Australia received more than 21,000 applications, the highest number recorded in the five years prior. Record numbers, together with an increase in urgent applications and reduced court efficiency due to COVID-19 lockdown measures, further exacerbated the already congested court system.

This rise in litigation over recent years has placed increased pressure on Australia’s court systems, Mr Parker, who has been an accredited family law specialist for 30 years, noted.

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“To better manage increasing demand for court services and to reduce the 500-odd backlog of cases that had been in the system for two or more years, the Family Court of Australia began advocating for arbitration and mediation as alternative dispute resolution processes,” he explained.

“These approaches are considered attractive alternatives to litigation because they are typically faster, commonly reducing the length of a dispute; and can be binding, more private, more cost-effective and more flexible. For this reason, it’s expected the trend towards alternative disputes resolution processes will only grow.”

Twelve months on from the structural reforms of the federal family law courts to a unified administrative structure, jurisdictional barriers have been dissolved, and improved efficiencies are driving demand for specialised legal services, according to Mr Parker, who said there are a number of new-age practices in play.

“The changes enable disputes to be resolved faster, effectively reducing the backlog of matters while improving the quality and cost of service to clients,” he said.

“The nationalisation of the court system, together with the rise in remote working, means that today’s family law practice doesn’t necessarily have to be jurisdictionally bound. This is positive news for both established and newer or growing practices, reducing the barriers to expansion and increasing the potential pool of clients.

“The courts’ increased focus on alternative dispute resolution has required family and relationship law practices and practitioners to evolve to include additional services and expertise. This is no longer simply a positive differentiator for competitive advantage, but instead a growing expectation of practitioners.”

Other changes, such as reforms to Australia’s superannuation legislation since 2017 and the conferral of jurisdiction over de facto partners from 2008, have also driven an increase in demand in the family law space, as well as an increased complexity in the space.

“The interface between family law and corporate issues has become increasingly complex during the past decade, and it is having a profound impact on the scope of work and expertise of family law practitioners,” Mr Parker explained.

“Matters often no longer simply include the family home, beach house and a little bit of superannuation. They are far more complicated, involving complex business interests, valuation issues, interpretations of trust structures, and the intermingling of investments both domestically and overseas, not to mention difficulties regarding enforcement related to overseas assets, which has been a significant change and challenge.”

Additionally, over the past three decades, the rise and use of financial agreements to deal with and ratify arrangements following relationship breakdowns have been an important development in the family law space, in addition to a significant shift towards negotiation and mediation.

“Financial agreements are now a common facet of the family office, and wills and estate planning. They are typically sought by parents and grandparents to quarantine business interests from personal ones to protect and preserve assets for future generations. With family courts now prepared to cease jurisdiction over trust assets, irrespective of their structure, financial agreements have never been more important in quarantining assets,” Mr Parker explained.

“Another significant change in recent years is the shift towards negotiated outcomes rather than litigation. The push for mediation and arbitration is common among both clients and the federal courts. In fact, the courts are actively encouraging the approach to relieve pressure on the court system and litigants.”

COVID-19 also brought a number of positive changes to the family law space, such as the adoption of remote witnessing, digital signing and remote appearance work — all changes, Mr Parker said, were important for family lawyers to stay abreast of.

“The changes help improve access to justice and save clients and lawyers significant time and cost, reducing the need for travel, alternative care arrangements and leave from work or other commitments.

“The field is becoming more technical, specialised and complex than ever before, so it’s important we stay ahead of where our profession is going. Alongside the growing complexity of asset portfolios, driven by increased inbound and outbound investment, family lawyers must have a working knowledge of taxation issues, structuring complexities, interpreting financial accounts, valuation methodologies, and evolving law around the use of trusts,” he concluded.

“Dealing with assets, including property, in multiple jurisdictions adds considerable complexity to a matter. It requires family lawyers to understand the differing family law principles operating in other countries, which can inform quite specific strategic decisions to protect the interests of clients.”