I recently presented to a conference of Australian Family Lawyers my “Letters from London – what Australian Family Lawyers need to know about English Family Law”.
However, as I discovered during the conference there is also a great deal we can learn from our antipodean cousins. This article explores some of what I, as an English Family Lawyer, got to know about Australian Family Law.
Some of our differences are well known. One headline being that whilst in England we have no codified laws governing financial division when cohabitees separate, in Australia de facto partners have similar financial rights to divorcees upon separation after just two years of cohabitation.
Some differences are a little more nuanced than I anticipated. My pronouncement in my presentation that I considered that Australian law enables contributions to be automatically reflected in financial settlements was not entirely accurate. The reality of the Australian approach to contributions lies somewhere closer to English approaches to matrimonial and non-matrimonial financial contributions. An article for another day!
Alongside the contrasts in current law lay some engaging topics about our approaches to practice and some forthcoming reforms in Australia.
(A)DR
Senior Judicial Registrar and Her Honour Justice Christie gave insight into the world of alternative dispute resolution, or as is now specifically referred to in Australia – dispute resolution. The leading A has been dropped. Why do we see mediation, negotiation, (Private Financial Dispute Resolution) PFDRs and arbitration as alternative dispute resolution? These are the tools in our arsenal as a family lawyer to achieve dispute resolution. Dropping the leading A normalises these processes as the way to resolve dispute rather than thinking of the Court as the singular dispute resolution forum.
We spoke about our practice not just as litigators, but as “resolutionists.” It is helpful to acknowledge that alongside pure litigation tactics we should be asking “what is preventing this case from reaching the settlement phase?” This should not just be our thinking at First Appointment and in the lead up to Financial Dispute Resolution (FDR), but it should predominate every client meeting from the first interaction.
Registrars and Court Lists
That question is repeatedly asked by Registrars in the Australian Family Courts. From initial filing, the focus is on how the case can be prepared to settle. This is already baked into our process, through the FDR process. the hands-on practitioner and Judge will be thinking at First Appointment – “what do we need to have in place for a successful FDR?”
I was interested to hear that a Conciliation Conference has to be listed within six months of a financial claim being filed, with the sole aim of exploring dispute resolution. The timescale and the wider focus on dispute resolution with a less litigious approach appealed, and is something which our FDR process could be tweaked to include.
On the topic of Court procedure, the Australian Family Court has specific court lists for financial disputes involving less than AUD500,000 (approximately £260,000). Is this worth considering for our Family Court? We have complexity criteria for the Financial Remedies Court (FRC) and the High Court for cases worth over £5m and £10m, owing to the particular sensitivities and skills involved. We already see a similar procedure in the English Civil Courts (with the small claims, fast track and multi track options depending on the value of the claim). Borrowing from Australia and from our existing procedures, we could build a distinct approach to the cases of sub-£500,000.
These lower value cases are often the hardest to resolve. The challenge is to make a modest pot split across two houses and to meet needs. Specific legal, commercial and pragmatic thinking is needed. A specialist bank of Judges, perhaps even a specialist bank of solicitors and advocates would benefit this group of litigants. It is perhaps even worth considering a fast-track procedure built toward reducing conflict and costs.
Draft Property Reforms in Australia
There are changes in the pipeline for family violence to stand as a consideration in financial outcomes. Changes to section 75 of the Family Law Act 1975 will enable the Court to consider the impact of family violence at two stages of the assessment of financial division: assessment of contributions and current and future considerations.
In England, whilst section 25(2)(g) Matrimonial Causes Act 1973 lists “Conduct” as a statutory factor to consider when dealing with financial matters on divorce, it is routinely overlooked given the high hurdles set by our existing judge-made law. This over-looks the fact that behaviour during the marriage can and does have an impact which ought to be reflected in the financial outcome.
As it stands, it remains difficult for our clients to set out at 4.4 of their Form E and to pursue as a factor elements of their spouse’s behaviour during the marriage. As practitioners, we advise against it, knowing that at First Appointment the judicial encouragement will be to not pursue a conduct case (those Judges of course being bound by dicta). And so, conduct is not routinely pleaded or pursued, even if the reality is that there has been an economic impact.
Those subjected to domestic abuse can be significantly affected during the marriage and beyond. The impact of abuse can impede financial engagement and decision-making. This can continue post-separation and may impede employment prospects and other economic activity. The abuse could lead to specialist health and well-being needs going forward. Financial control can put one spouse in a stronger economic position both during the marriage and in future. These are just a few examples of how conduct can have an economic impact.
Over the last few years, our family law has evolved to recognise domestic abuse in the wider context than violence alone and to consider the effects of certain types of behaviour. Coercive control and patterns of behaviour now form part of our understanding and statutory provisions for dealing with domestic abuse. The next step is to have these patterns of abusive behaviour recognised as having a financial effect both in the past and going forward.
I am not looking to open the floodgates to all types of behaviour being pleaded in section 4.4 of Forms E. But the current approach does not work and impedes conduct being pleaded and pursued. Given the existing approach by the Courts, we may need a statutory change unless litigant and their family lawyer can brave the usual First Appointment hurdle to lead the way to and through the appellate courts to make change to the current binds. It is being made possible in Australia; can we follow in their footsteps?
The perspectives offered in this article are drawn from a very insightful conference I recently attended, hosted by Australian Law firm Rafton Arbitration and Mediation Practice – you can find more information on the conference here.
