27 April 2007

The Family Court of Australia has implemented a significant reform in court procedures with less adversarial trials that involve a more informal and less complex legal process as judges take on a more involved role in family law cases involving disputes over children.

Less adversarial trials are a major shift away from the traditional common law adversarial approach in Australia’s family law system.  These trials take on aspects of European approaches that are more child focused and reduce the likelihood of hostile cross-examination of parties and witnesses.

The Chief Justice of the Family Court, Diana Bryant, is launching the publication “Finding a Better Way” in Sydney today, an account of the history and experience of achieving this change.  The Chief Justice said less adversarial trials were a better way to decide disputes between separating parents when the best interests of children was the paramount concern. 

“It is a bold new approach that has already made a big difference to the capacity for future cooperative parenting for those who have been unable to resolve parenting differences and needed to come to the Court for a judicial decision,” Chief Justice Bryant said.

“Less adversarial trials focus on the children of a relationship and their future needs.  They are likely to cost less than a traditional hearing, whilst remaining fair, transparent and reflective of the rules of natural justice.  The simpler processes also make it easier for those who choose to represent themselves.”

“The judge is more involved in the hearing and therefore limits the evidence to matters that are genuinely in dispute.  Parents can speak directly to the judge to say, in their own words, what the case is about and what they want for their children.  The judge, rather than the parties or their lawyers, decides how the trial progresses.  A Family Consultant, a Court employed psychologist or social worker, assists the judge as an expert adviser during the trial.”

“The less adversarial approach has already been tested in a pilot, with positive results.  We expect people will be pleased with the new approach, as we are removing the harsh aspects of an adversarial hearing”, the Chief Justice added.

Less adversarial trials are supported by changes to the Family Law Act that took effect on 1 July 2006 and apply to all parenting cases started after 1 July 2006, and other matters with the consent of the parties.

Click here to view the report Finding A Better Way: A Bold Departure from the Traditional Common Law Approach to the Conduct of Legal Proceedings by Margaret Harrison, April 2007