We all are aware of the long delays in the FCC and the Family Court, with many of the issues underpinning delay beyond our control, as practitioners. However, there are strategies we can undertake and commit to, as problem solvers, to ensure that we don’t unnecessarily contribute to delaying our clients matters, on top of the courts delay. I am asking you, do you have strategies in place to reduce practitioner and in the process, court delay? What strategies can accomplish that, you may ask? Read more to see some simple strategies that can greatly improve your position, to be on the ‘front foot‘ in your clients case.
As practitioners we are bound by ethical duties (contained in the Solicitors Rules/Bar Rules) to the court, and our clients for the administration of justice. If these ethical duties conflict:
- As officers of the Court our duty to the court is paramount, which includes:
- exercising independent judgment (we are not the clients mouthpiece)
- confine the issues to the real issues in dispute, have a broader view than just THIS case.
- advance the clients case efficiently
- be frank and open with the court
- engage in forensic judgment of the case
- do not engage in an abuse of process i.e. by bringing unnecessary applications or fire up the clients to vigorously litigate every issue, instead of trying to manage clients and their expectations and advise accordingly, and aim to resolve without unnecessary court applications being made or even file documents just prior to a court event.
A failure to apply the above will result in unnecessary delay in the clients case and also in court. Our job is to problem solve and assist the court to progress the matters as efficiently as possible.
Seek to adjourn matters before a conciliation conference of final hearing, as soon as you know of the need, with a very good reason (i.e. settlement negotiations are progressing well, valuations haven’t been received). Late adjournment requests to the Court, will impact on the court and cause further delay, as the court may not be able to reallocate the available time to another family law matter.
I take briefs in Medical Negligence, Personal Injury, Victims of Institutional Abuse, Local Court Crime and driving offences and Family Law (including mediation). Often its said that family law is an easy area of law. My view is that;
- family law intersects with other areas of law, multidimensional
- all persons aren’t suitable for family law
- it involves value judgments to define the real issues
- it involves ‘people skills‘ both client and between other practitioners, as problem solvers to avoid unnecessary delays
- The need to comply with the Legislation/Rules cannot be emphasised enough. They are the basis of, and management of our cases and compliance will avoid delays
- Advocacy begins with the written documents filed in court and the first thing the judges see. The documents filed in court are the basis of advocacy, its important they are drafted effectively and with purpose and that practitioners use their forensic judgment when drafting affidavits and compiling annexures.
- Its mistaken to think that advocacy commences when a Barrister starts an opening statement at the beginning of a hearing. If that belief is held, a practitioner may then place great weight on the barristers advocacy skills, as the sole basis for obtaining a favourable result for the client (or otherwise). It must be put in perspective, advocacy starts with the documents filed in court and a barrister can only rely on what they have contained in documents, to advocate.
- Advocate concisely and effectively the real issues in the case
- Engage the judge, don’t fight against him/her (the judge is the one you need to persuade, not your opponent).
Documents provide the court/judge with the first impression of the case, so they need to be helpful and persuasive for your client’s case, including the real issues being canvassed (not all of the issues that have been part of a 4, 10, 15, 30 year relationship) need to be put before the court.
Whats the purpose of the Initiating Application and Response?
- specifying your clients case by the orders that are sought. It assists the court to identify the scope of the dispute.
- draft documents as if the Evidence Act applies.
- strictly comply with rule 15.28 of the FCC Rules re: annexures
- distinguish documents prepared for interim and final hearing.
- if possible, don’t file applications or responses close to pre-existing court events, its an abuse of process, ambush and a waste of court resources.
Do not get in the habit of using the following terms, they are not helpful to the Court:
- “That the court make such order as it considers just and equitable.” This doesn’t assist the court as the Court isn’t in a position to try and guess the parties claim.
- “Such order as the court deems fit.” The court has the power to make orders outside of those requested by parties, this order is unnecessary.
Preparation of the case thoroughly and professionally, from the outset of proceedings, with focus on the real issues of the case, which involves a proper exercise of forensic judgment, in both documents and as a part of advocacy. This will be most persuasive.
These strategies will go a long way to avoid unnecessarily delaying your clients case and causing delay in the court system.
Are you ready to take the leap to work with Louise? It’s easy to contact Louise to discuss the issues you are facing in your practice or case and how she can assist you and your clients, by calling (02) 9336 5399 or email firstname.lastname@example.org
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