If you have a family law matter that you and your partner cannot agree on, and you’ve explored other dispute resolution methods, you may be considering whether court or litigation is next step.
Although there are other ways to resolve family disputes, litigation is usually used when other forms of family dispute resolution have failed, or aren’t appropriate. This is particularly the case when there are disputed facts surrounding the family law matter, or when both parties are quite far apart on what they believe the best solution should be.
What is Family Law Litigation?
Family Law Litigation or family law court proceedings are initiated when two parties cannot agree on a mutually agreed outcome, and an independent party (in this case a judge) is required to reach a decision.
As such, litigation takes place in the courtroom. Under this system, the parties involved are adversaries, meaning they are opponents who disagree with each other.
Both parties are required to file particular 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, setting out the Orders that they want the Court to make, as well as an Affidavit, which is their sworn statement of evidence, of the facts they support the Orders they are seeking.
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 then list the matter for a first return date and make procedural directions and/or interim Orders that will be in place until such time as the matter is ready for a final Trial.
While most matters settle at some point in the litigation pathway, those that do not will be given a final hearing. At the final hearing, the judge will consider all evidence and how it relates to the Family Law Act. They will then use this legislation to guide their decision, which is final.
While Judges must work within the legislation and use precedents 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.
Benefits of Family Law Court Litigation
Due to the adversarial nature of family law litigation, the process has a number of pros and cons that you should be aware of before you begin proceedings.
The benefits of the family law court litigation process include:
- The power of the Court to make and enforce Orders – whether it be for interim spousal maintenance, mediation, disclosure or to effect or stop the sale of a property – there is a wide range of Orders that the Court can make and enforce if the other party is acting unreasonably, not fulfilling their obligations refusing to facilitate time between a child and a parent (without a reasonable excuse) and/or dealing with the assets of the parties without the knowledge or consent of the other;
- The power of the Court to ensure 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 initiated;
- The testing of evidence in a managed setting by an independent third party.
Disadvantages of Family Law Court Litigation
While family law litigation has a number of benefits, there are also certain disadvantages to the adversarial court system in Australia, including:
- The number of matters before the Family and Federal Circuit Court in comparison to the number of sitting Judges means that the family law litigation process usually move very slowly (for non-urgent matters). In the Family Court and Federal Circuit 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 is expensive. The high cost of legal advice and legal representation at a various number of court dates can hinder the outcome for those who cannot afford it;
- The high cost of the family law litigation process may prevent people from enforcing rights they may have. Similarly, it may force some people to economise on representation of their case or on points that they may have ‘won’ had the matter been decided by a Judge, simply to make a commercial decision;
- The stress of litigation on a person’s mental health, well-being and ability to move on with their lives is significantly impacted when in litigation;
- Unlike other forms of dispute resolution where the parties control the process and agree on an outcome, in litigation, that power is given to a Judge, whose decision is final. Most people want to have a say in what happens to their children, their assets and their financial future. Litigation takes this decision-making power away from them and thrusts a decision upon them by a person who they do not know, a person who has never met their children, and a person who will not be effected by the consequences of the Orders made (whether parenting or financial).
- Judges are humans too and can make errors, wrong decisions or apply the legislation incorrectly. While there are options for appealing a Judge’s decision, this in turn adds a considerable amount of time to the litigation pathway and a significant amount of cost. Parties may also be adversely affected in the interim (or on a final basis) of a Judge’s ‘wrong’ decision until their appeal or stay application can be heard.
Contact Our Experts to Discuss Your Needs
At Damien Greer Lawyers, we are highly trained and experienced in dealing with even the most complex parenting and financial family law matters.
We understand that every case is different and requires a tailored approach to achieving the best outcome. If you’re wondering whether litigation is the right approach for your family law matter, please contact one of our family law lawyers today by calling (07) 3837 5500 or getting started online.