For family law matters that might be more complex, or other methods weren’t successful, family law litigation might be your best solution.
Family Law Litigation Requires Court Proceedings
Litigation takes place in a courtroom. Under this system, the parties involved are adversaries, meaning they are opponents who disagree with each other. The process typically includes:
- Parties are required to comply with a number of pre-action procedures before they are able to commence court proceedings.
- Both parties file documents to support their case, and the outcome they are seeking.
- For parenting and financial matters, parties will be required to file an Initiating Application or Response. This sets out the Orders they want the court to make. It will also be necessary to file an Affidavit (their sworn statement of the facts they support, and the orders they’re seeking) in certain circumstances.
- For financial matters (including child support matters), parties will also be required to file a Financial Statement, which is a sworn statement of their financial circumstances.
- The court will list the matter for a first return date and make procedural directions and/or interim order that will be in place until the matter is ready for a final trial.
- Judges make decisions in accordance with legislation and use previously decided cases to guide their decision making. Family law is very much a discretionary jurisdiction, which can lead to a wide range of possible outcomes in any given case.
Pros and Cons of Family Law Litigation
Due to the adversarial nature of family law litigation, the process has several pros and cons that you should be aware of before you begin proceedings.
Pros of Family Law Litigation
• The court has power to enforce the requirement for full and frank disclosure of all relevant financial matters
• The implementation of both procedural and substantive timelines, particularly when one party is delaying matters or not responding
• The ability to issue subpoenas to third parties once proceedings have been commenced
• The testing of evidence in a formal setting by an independent third party.
• The final hearing will bring an end to all the issues in dispute and the Judge’s decision is final unless appealed by one of the parties
Cons of Family Law Litigation
• In the Federal Circuit and Family Court of Australia, the average waiting time between commencing court proceedings and a final hearing is between one and two years
• The family law litigation process can be expensive
• Litigation can be a highly stressful process
• Most people want to have a say in what happens to their children, assets and financial future (litigation passes all decision-making power to the judge).
• Parties could potentially be adversely affected by a Judge’s ‘ decision if it is later found to be wrong upon being appealed or until their stay application can be heard).
Is family law litigation right for me?
The litigation pathway might be necessary for your situation, but if you haven’t begun any form of dispute resolution yet, you will need to exhaust this avenue first and there may also be alternatives. For a free discussion about whether litigation is necessary in your situation, chat to the experienced, and caring team at Damien Greer Lawyers.
Justin Hine Special Counsel
We are lucky to have a team environment that is supportive which assists all of our clients.