Smart Separation

Will Covid-19 change the family law system forever? Too early to tell?

For years, governments have been cutting the real funding of the family courts. In the eyes of the legal profession, there is little argument that the effect of cost-cutting has been to dilute the quality of the courts’ service. Lawyers have long argued for increased funding of the courts. However, are funding cuts necessarily contrary to the concept of access to justice?  A different perspective is to ask, ‘Should funding cuts be at the expense of the quality of the service, or could economies be achieved by creating a higher barrier to entry’?

Covid-19 just delivered a new barrier; the limited operation of the courts.

One of the most noticeable effects of the pandemic restrictions has been the new limits on access to the courts. It has created this new barrier by limiting the availability of court services, in exactly the same way as funding cuts (might) have done. As a result, the courts’ advice to would-be litigants is now to be reasonable, to have sensible discussions and/or to mediate, due to the current lack of its capacity to offer a resolution of cases.

Why, in the past, has the Court not urged good sense, reason, and mediation with the same force of urgency as it does so now?

The Family Law Act has for many years actually required those things of litigants and the profession. In children’s cases, there is a very specific requirement for family dispute resolution to occur prior to the issues of proceedings, with exceptions for urgency and safety.  There is not the same specificity when it comes to property cases; arguably, the rules about attempts to settle property disputes before issuing proceedings have been treated more like a plea than as a demand. There are no consequences for those who fail to make efforts to resolve their disputes before going to court.  Whilst not invoking the language of the Rules, the court is now invoking the message of the Rules, because Covid has gotten in the way of the former complacency about pre-action procedure.

This gremlin is redirecting the traffic quite effectively. Scarcity has changed the messaging.  Why, in the past, have we not applied the same scarcity mentality and restricted access for those who don’t actually need the court? Why has the legislature allowed the crowding of the system by granting people the luxury of running their private disputes on the public purse, with a zero barrier to entry in the case of property matters? We are now about to learn just how many of those people there are.

This Covid moment gives pause for real reflection on these questions. It raises a fundamental question about the court system, and for whom it exists.  It potentially opens up the possibility for system change.

In early learnings from the pandemic, we are beginning to observe that lawyers are finding ways to assist their clients without any real prospect of timely help from the courts. We don’t yet know an end-date on the limitations to accessing the system, so it is not possible to simply offer clients deferral. Collaborative practice and particularly mediation are being sought out more than ever, in my observation.

Time will tell what impact the lack of access to the courts will have on dispute resolution practices, and as to whether the urgings of the court to be reasonable and to mediate will be forgotten, or if they will be so well practised as to have become the norm when we emerge from this. 

Right now there are more questions than answers: 

  • Will there be system change?
  • Will court funding and operations ever return to the former level of service?
  • Will the legal profession have found itself wanting when it comes to negotiating without the force of court proceedings to back it up?
  • Will new services and providers emerge?
  • Will virtual practices continue, or will there be a flight back to traditional ways of practice?
  • Will there be a tsunami of backlogged cases when it’s all over?

This will be an interesting space to watch.