What is the less adversarial approach in family law?
Separation is never simple. The emotional toll of ending a relationship is already immense, but when children, finances and property are added to the equation, things can quickly spiral into a drawn-out and destructive battle. Too often, couples think the only way to settle things is through a traditional courtroom fight, with each side trying to “win”. But the reality is that family law does not always need to look like that. Courts in Australia have embraced a model called the less adversarial approach, designed to reduce hostility and focus on practical outcomes.
Imagine this scenario. A couple has decided to separate after ten years of marriage. They have two children, a shared mortgage, and a rental property they lease out to tenants. Emotions are running high, and both sides want what they feel is fair. In the old model, each partner would hire lawyers, collect evidence, and prepare to argue in court as if they were opponents in a boxing ring. The process would take months, possibly years, and the children would be caught in the middle. Under the less adversarial approach, however, the judge takes an active role in guiding the process. The emphasis is on reducing conflict, keeping the focus on the children, and reaching an agreement without unnecessary legal gamesmanship.
What is the difference between adversarial and non-adversarial?
To understand why the less adversarial approach matters, you first need to see how traditional trials work. In an adversarial system, each side presents their case, their lawyers argue the facts, and the judge acts as an impartial referee. This method can be effective in criminal or civil cases, but in family matters it often fuels resentment. Each parent tries to prove the other unfit, or digs into financial records to discredit them. By contrast, the non-adversarial approach encourages problem-solving. The judge is no longer a passive observer but a manager of the process, asking questions directly and encouraging parties to cooperate. Instead of escalating disputes, the court works to de-escalate them.
What is an adversary trial?
At its core, an adversary trial is about competition. Each side is given the chance to present evidence, cross-examine witnesses, and make legal arguments. The goal is to persuade the judge that your version of events is stronger than the other side’s. In commercial disputes or criminal matters, this model makes sense. But when the “opponents” are two parents who still need to communicate about their children’s schooling or medical needs, the adversary trial system can create long-term damage. That is precisely why the Family Court, operating under the Family Law Act, has introduced procedures to keep family matters less combative.
Is Australia adversarial or inquisitorial?
The Australian legal system is primarily adversarial. That means in most cases, lawyers present the evidence and the judge remains neutral until delivering a verdict. However, family law has carved out a unique space by moving closer to an inquisitorial style in certain matters. Under the less adversarial approach, the judge is empowered to ask questions, set timelines, and keep the focus on the children’s best interests. It is not a complete shift to an inquisitorial system, but rather a hybrid that acknowledges the need for flexibility in sensitive cases.
Take another real-life example. A separating couple is in dispute over their parenting arrangements. They cannot agree on schooling and medical decisions, and both want majority time with the children. In an adversary trial, each side would spend thousands of dollars gathering expert witnesses and psychological reports, trying to prove the other unsuitable. Under the less adversarial approach, the judge asks direct questions, limits unnecessary evidence, and sets ground rules to reduce conflict. The outcome is still legally binding, but the process is less traumatic for everyone involved.
This approach also matters in financial matters. Whether dividing savings, superannuation, or even dealing with jointly owned property, the less adversarial model helps prevent disputes from spiralling into years of litigation. Instead, the focus is on fairness and efficiency.
The bottom line is that the less adversarial approach in family law is about recognising the reality of separation. Parents still need to co-parent. Families still need to move forward. By reducing unnecessary hostility and focusing on practical solutions, the court ensures that legal outcomes do not destroy what is left of family relationships. For anyone facing the uncertainty of separation, understanding this process can make a difficult road just a little less painful.
