Dispute and Litigation

Litigation is an adversarial trial system used in the Australia justice system. The adversarial system is a contest between two parties to win the case. Under this system the parties involved are adversaries meaning they are opponents. The outcome of the adversarial system is a winner and a loser in a court contest. The judge decides which party wins the case.

Resolution of family law disputes in court is based on the adversarial system.

The adversarial system has five distinct features by which it is defined:

  • The role of the parties;
  • The role of the Judge;
  • The standard of proof;
  • The need for professional representation; and
  • Rules of evidence and court procedure.

Benefits of the adversarial system

  • It is the most effective process for testing the validity of arguments and uncovering the truth.
  • Each side is given an equal opportunity to present arguments for their case and to critically question the arguments of the opposition. This is achieved through a process of each of the parties giving evidence under oath and being cross-examined.
  • The process is governed by strict rules that aim to ensure the truth is brought out during the process but that each party is an equal opportunity to put their case and also answer to opponent’s case.
  • One of the most important of those rules is that legal representatives have a duty to the court over and above their duty to their clients. They cannot mislead the court by making allegations (on behalf of their clients) that they know are false or by deliberately failing to inform the court of a previous decision by the Court that would be detrimental to their case.
  • Another of those rules is to requires an objective consideration of the evidence. There are Court rules and procedures that must be followed to minimise human error and promote consistency in Court decisions.
  • The adversarial system is the best system so far to satisfy the community’s idea of fair play and produces confidence in the decision made and the legal system.
  • It requires parties to be personally responsible for the preparation handling of their case. In this system parties use professional advocates and representatives to ensure the best preparation of their case.

Disadvantages of the system

  • The adversarial system is very slow which means that too many people are denied justice for too long. 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.
  • Delays in the system are a constant problem for those seeking resolution of disputes in a reasonable time.
  • The adversarial system is expensive. The high cost of legal advice and legal representation can seriously hinder the outcome for those who cannot afford it.
  • The high cost may prevent people from enforcing rights they may have or may force them to economise on representation of their case. This may mean that the evidence which needs to be properly prepared to support the client’s case may not be provided to the Judge at the trial. This in turn may affect the outcome .
  • Parties are required to give evidence under oath at a final hearing. This means a party can be confused when questioned by highly skilled lawyers with the result that their evidence may appear to be unreliable. Parties also need to rely on their memory of events which often occurred some time ago. This is made more difficult because of the delays in getting the case to the final hearing.

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