Published in The Clarity Journal 81 – 2020.
Introduction
This article discusses how plain language in Australian family law combined with a clear process makes justice more accessible. Both substantive and procedural law are discussed.
Justice requires minimal delays, minimal costs and accessibility. Law is accessible when substantive and procedural laws are understood by lay people.
Unrepresented litigants and children are vulnerable where the law is uncertain, procedures cumbersome and delays frequent. Family law should be an exemplar of justice because of the number of unrepresented litigants and children needing certainty.
“Justice is not just denied to parents who are at war but to the whole family, particularly the child, whose life is left in a topsy-turvy world without certainty.”
Substantive Law
Lawyers, court officials, judges and bureaucrats benefit from plain language, but they are not the primary beneficiaries of plain language. The primary beneficiaries of plain language should be lay people seeking to avoid or resolve a dispute.
Plain language reduces verbiage and ambiguity. Verbiage creates delays and increases costs. Ambiguity creates uncertainty and confusion, adding to delays and costs.
Plain language in substantive law reduces the risk that the structure or language in a legal document obscures the meaning or intent of the law. If a statute, regulation or judgement cannot be understood, the law cannot be applied effectively in the first instance by parties attempting to resolve a dispute without court orders.
The Australian Law Reform Commission was commissioned to enquire into the family law system. The final report 2 (ALRC Report) was published in March 2019.
The ALRC Report cites a number of examples where plain language reform is needed to make the Australian family law system more accessible.
Example 1.1
“Many family law litigants are unrepresented, and many will be encountering the family law system for the first time.”
“It will not be possible to avoid complexity, but readers should be able to see what rules or principles apply to their situation. This requires attention to both the wording of particular provisions and to the structure of the Act.”
- Australian Law Reform Commission: “Family Law for the Future — An Inquiry into the Family Law System”, Final Report (March 2019);
Example 1.2
“A law that cannot be understood by the people affected by it – or worse still lends itself to being misunderstood – is a bad law. That is particularly so when we are talking about a law which affects families and children.”
Example 1.3
“Simplifying family law legislation
Recommendation 55 The Family Law Act 1975 (Cth) and its subordinate legislation should be comprehensively redrafted.
14.11 The family law system, including its legal frameworks, should be designed to be as accessible and comprehensible as possible to all families who need to use it. Submissions have clearly indicated that the Family Law Act is currently not meeting this need.”
Plain language reform in substantive law provides a tool for change. Plain language reform in procedural law is also needed, supported by a clearly documented process showing the accountabilities and actions of the key parties during dispute resolution.
Procedural Law
Plain language in procedural law reduces the risk of the structure or wording of a document from causing delays or confusion in the process of dispute resolution.
Unrepresented litigants must locate appropriate forms, complete each form correctly and submit the form in the prescribed manner. If procedural forms are completed and submitted without error, costs and delays can be reduced and the percentage of disputes resolved without court orders might increase.
103 forms are attached to the Australian Family Court website.
Litigants may be required to locate, complete and submit a number of forms.
The following are examples of forms that are not structured or worded clearly.
Example 2.1
Title: Affidavit.
On Page 2 of this form under “Part D Evidence”, the form states:
“Set out the facts divided into consecutively numbered paragraphs. Each paragraph should be confined to a distinct part of the subject matter”. (22 words).
This could be re-written:
“Write the facts in consecutively numbered paragraphs. The content of each paragraph should be distinct”. (15 words)
A simple edit has reduced the number of words by approximately 30%. If the number of words in procedural documents could be reduced by 20% in all family law jurisdictions, forms could be processed faster with fewer errors.
Example 2.2
Title: Application for Consent Orders (do it yourself kit).
The Form has 39 pages. Information pages are identified by a letter (A-I). Subsequent pages are numbered (1-26). Some pages are not identified by letter or number.
On page 2 there is a checklist which states, “This checklist is provided as a guide to completing the form correctly. It highlights particular questions which the Court has found people do not always answer correctly or fully”.
The questions should be rewritten so they can be answered without referring to a checklist.
Example 2.3
Title: Initiating Application Kit (do it yourself kit).
This Kit needs to be simpler, for example:
The form may be filed in either the Family Court of Australia or the Federal Circuit Court of Australia. Each court has different rules governing filing. Information pages are identified by a letter (A-E). Subsequent pages are numbered (1-10). Some pages are not numbered. Some pages with notes are marked “Remove this sheet before filing”. Some pages with notes are not marked “Remove this sheet before filing”.
The words “kit” and “form” are used interchangeably in the following paragraph. “Use this kit to apply for final orders. Interim and procedural orders can only be sought in this form if you are also seeking final orders”.
Actual Page 9 of the document, but labelled 2:
“Final orders sought
(State precisely and briefly the final orders sought by the applicant – give a number to each order sought).” [21 words]
This could be re-written as:
“Final orders sought
(State each order precisely. Number each order sought separately).” [12 words]
Process
Multiple parties or agencies may be involved in a family law dispute. These include litigants, lawyers, Family Court judges, Federal Circuit Court judges, State Court judges, court officers, support personnel. The interactions between complex interdependent functions in an often emotionally charged environment with confusing documentation may be bewildering for unrepresented parties and children.
A bewildering, confusing process can be clearly explained using a map or chart with graphics and symbols replacing technical words and jargon. Documentation forces stakeholders to ask, “what is the point of this step?”, “who is accountable?”.
The following examples from the ALRC Report highlight the convoluted, complex process which makes unrepresented litigants and children especially vulnerable.
Example 3.1
“For parties who are able to engage lawyers, the convoluted and complex decision making pathway, that must be arrived at through an understanding of the combination of legislation and case law, adds significantly to the time and cost of any parenting matter, and ultimately to the overall delays within the courts.”
This would be more daunting for unrepresented litigants.
Example 3.2
“The family law system is overly complex: Many people found the law and legal processes that apply to family law disputes too complex to understand and engage with.”
An “overly complex” process makes justice inaccessible, creating confusion and additional costs.
Example 3.3
4.42 “The SPLA Committee also considered that the system of two federal courts with concurrent jurisdiction should be simplified, having regard to the ‘overwhelming evidence’ received highlighting the complexity of navigating multiple jurisdictions, and multiple courts within the same jurisdiction.” 9
Legislation must cater for evolving family structures. Justice is not served when unrepresented litigants are burdened with complexity and navigation hurdles.
Litigants are entitled know what the process is; the parties involved and the role of each party. For example, do they interpret law? lodge documents? conduct negotiations? collect evidence?
There may be uncertainty about how legislation will be interpreted. The dispute resolution process should not be confusing.
Process reform adds substance to plain language reform. A clear process in visual format is invaluable when there are multiple parties including litigants, counsel, court officers, filing clerks, support personnel and judges. A visual map enables parties to clearly identify accountabilities, plan actions and identify when decisions are required and delays likely.
Australia has had a number of enquiries into Family Law. Recommendations include redrafting of legislation to improve clarity and rationalising the many agencies and jurisdictions involved in the administration of Family Law. Process reform is an overdue, critical component.
Conclusion
The ALRC Report states the need to redraft the Australian Family Law Act (1975). A commitment to plain language redrafting is required as well as the need to provide litigants with clear documentation of the dispute resolution process.
Sample size
My assertion that plain language reform improves access to justice, particularly in procedural law, is based on a small sample of edits and examples from the ALRC Report (2019). There are additional examples in the ALRC report referring to the need to redraft the Australian Family Law Act (1975).
