Traditionally, the Family Court of Australia, like most Australian courts, operated within an adversarial legal system. This meant disputes often involved lengthy court battles, which created more conflict between the parties. Clients had little control over proceedings as lawyers presented the case and communicated with the judge.
The Family Court has developed a new trial process aimed at minimising the negative impact that an adversarial trial can have on the parties involved, especially the children.
A less adversarial trial (LAT) is more closely directed by the judge and is designed to encourage the parties to focus on arrangements that are in the best interests of the children.
Rather than approaching the proceedings with the aim of ‘winning’ or ‘punishing each other’, the parties (usually the parents) and their lawyers (if represented) are encouraged to consider how they can find the best solution for the children.
A less adversarial trial is: focused on the children and their future; flexible to meet the needs of particular situations; expected to cost less and reduce the time spent in court; and less formal and less adversarial than a traditional trial.
Extensive evaluation of the LAT was conducted and the results indicated:
A final evaluation report, prepared by Professor Rosemary Hunter, similarly found that a less adversarial and more child focused process has the potential to assist parties to parent more cooperatively.
Professor Hunter noted that the model was designed to be a more active and engaging process, with judges and family consultants confronting and challenging parents about the impact of their conflict on their children. Professor Hunter also found that many parties benefited from speaking directly to the judge, irrespective of whether they were represented by a lawyer.
Other key features of the less adversarial approach include:
Background to the LAT
The less adversarial model was piloted in the Family Court’s Sydney and Parramatta registries throughout 2004 and 2005 and in the Melbourne registry in late 2005. Due to the success of the pilots, the program is now run in all family law registries.
The changes to the Family Law Act 1975, which took effect on 1 July 2006, support a new, less adversarial approach to hearing cases involving children. The LAT model applies to all parenting proceedings initiated and children’s cases filed after 1 July 2006. It also applies to financial proceedings with the consent of the parties.
A formal, two-part external evaluation, including all less adversarial cases up to 31 December 2005, was undertaken throughout the pilot of the model. The results of the external evaluation have been supported by two further reports:
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