The recent High Court appeal of Charisteas v Charisteas  is a cautionary tale for parties considering legal action ‘for the principle of the thing.’  Charisteas initially began as an application for property settlement orders relating to a $2.2 million dollar asset pool in 2006 (now diminished to $600,000) which has remained ongoing for the last 16 years and has racked up over $3.5million dollars in legal fees without nearing a resolution. Western Australian Supreme Court judge Marcus Solomon recently referred to the matter as “toxic, protracted and staggeringly expensive.” which is analogous with most complaints from clients about family lawyers and the family law system.
In 2019, the Australian Law Reform Commission conducted an inquiry into the family law system whereby individuals were encouraged to anonymously share personal stories of their experiences with the family law system. The overwhelming response from participants was that “engagement with the family law system is emotionally and financially taxing, it ‘ruined their life’ and left them financially destitute and alienated from their children.” Similarly participants reported that they felt their lawyer was ‘too adversarial’ and ‘incentivised to escalate or create disputes to create unnecessary costs.’
A result of the inquiry was a massive overhaul of the family law court system which has introduced a number of promising changes to the way we resolve family conflicts.
Baxter, J., & Warren, D. (2021) found that one in ten people were reportedly experiencing ‘a great deal’ of conflict in their household. This figure tripled for separate household families with thirty-two per cent of co-parents claiming they were experiencing ‘lots of conflict with the other parent’ and nine per cent being ‘fearful’ of the other.
It stands that whether you are facing ongoing family conflict or thinking of negotiating a property settlement with your partner, families everywhere are experiencing a great deal of conflict without having the knowledge or resources to address them effectively.
Following the on-going social and financial challenges we as a community are facing post COVID-19, the intervention of alternative dispute resolution has arguably never been more important.
Accordingly, in September 2021, the Federal Circuit Court recently amalgamated with the Family Court of Australia to become the Federal Circuit and Family Court of Australia which now mandates intervention with Alternative Dispute Resolution (ADR) processes (with limited exceptions). An example of this is the requirement for s 60I certificates as part of the initial filing material which are certificates from Family Dispute Resolution Practitioners certifying that genuine attempts were made to resolve matters by ADR.
This is a positive step in the right direction as historically, 90 per cent of cases are resolved prior to progressing to a final court hearing which arguably is attributable to utilisation of ADR processes and techniques.
So, what is alternative dispute resolution?
ADR is when an independent third person assists people to resolve their disputes usually in an informal setting, commonly at mediation. ADR allows agreements to be streamlined cost effectively by encouraging and facilitating open communication between parties. Matters before ADR are strictly confidential (with very few safety exceptions) which encourages parties to make full disclosure without concern that they will be used against parties in future. Unlike court, matters at mediation are usually resolved at the first instance as the practitioner is there to assist you to resolve the issues and come to a resolution that makes sense for you. The same efficiency cannot be said for matters that proceed to trial with many taking years to resolve, often minimizing party’s asset pools considerably in the process.
How we use ADR
At Yarra Lane Legal, we pride ourselves on adopting these measures as part of the way we service our clients and always encourage negotiation over litigation where appropriate. We do this in the way we interact with our clients, their ex-partners and other practitioners.
We appreciate that people come from all walks of life, experience and backgrounds and are here to cater our advice to your needs. We are partnered with a range of organisations and resources in the ADR field to help us provide timely, cost-effective legal separations which allow our clients more time to focus on what truly matters. For more information on our services, please visit:
 HCA 29 (‘Charisteas’).
 Paul Garvey, ‘Ex-wife’s legal debts top $3.5m as ‘toxic’ divorce case rolls on’, The Australian (online, 3 August 2022) <https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fbusiness%2Flegal-affairs%2Fwomans-legal-debts-top-35m-as-toxic-divorce-case-rolls-on%2Fnews-story%2F65e2c13ad0315980ad3bb89115c2f4dc&memtype=anonymous&mode=premium&v21=dynamic-groupa-test-noscore&V21spcbehaviour=append#:~:text=The%20divorce%20proceedings%20%E2%80%93%20which%20have,%2C%20protracted%20and%20staggeringly%20expensive’>.
 Australian Law Reform Commission, Tell Us Your Story, Family Law: “a bowl of spaghetti with no mince” (June 2019) 4.
 Ibid 5.
 Jennifer Baxter and Diana Warren, ‘Relationships within the family’ (Families in Australia Survey 3, Report 2, Australian Institute of Family Studies, Australian Government, December 2021) 14.
 The Mediation Centre, Family Dispute Resolution (Web page) < https://www.themediationcentre.com.au/family-dispute-resolution/>.