It is not uncommon for clients to tell us they are ready to start court action if necessary to deal with their family law issue. Almost always, the clients who say this have never had the experience in the Federal Circuit or Family Court of Australia and so do not realise just what this will mean to them in time, stress and money.
As a starting point, the Federal Circuit Court dealt with 85,477 cases (43,846 of which were divorces) in the 2016/2017 financial year. There was also a backlog of 21,000 cases waiting to be heard as at 30 June, 2017. While these statistics may not be current they nonetheless reflect the experience of those of us who engage with the Courts on a daily basis.
The Court’s heavy case load (due to the number of applications and backlog in cases waiting to be heard) raises the question of the cost in both time and money of litigating your case through this court system. While the strength of your case is a critical consideration, so too is the cost compared to the benefit you will ultimately receive by litigating your case in Court.
Assessing the strength of your case
In our experience, clients are poor at assessing the quality of evidence available to them to sustain the case they wish to put to a Court. Mere assertion is not evidence. The onus is on such clients to establish their case and for this they require hard evidence in the form of documents. Objective evidence such as independent reports prepared by experts is also often required.
Lawyers provide invaluable assistance to their clients at this early stage by helping them to obtain the evidence and be able to evaluate that evidence objectively. It is far more cost effective to pay for such a service at this early stage than get to court and then discover that your case is deficient because of it lacks proper preparation and objective evidence.
The cost compared to the benefit of litigating your case in court
“It’s the principle”
Some clients tell us that they are prepared to go to Court to protect a principle. At the time they say that they want to do this regardless of the cost. Clients should be aware of the risks in doing this. These risks include the (often significant) cost, the delay in the court process and also the possibility that they may be ordered to pay the costs of the other party in the event of losing even part of their case.
In this situation, the cost far outweighs any benefit that the client might receive from this process.
“I have tried everything to settle with my former partner”
For some clients, there is no option other than to commence court action. Those clients usually have a case that has reasonable or good prospects of success. However, even these clients should not commence this process without a clear understanding of the risks associated with running a case in court and the considerable cost it will entail.
It is for these reasons that alternative dispute resolution processes should be exhausted before commencing litigation in a Court. For financial matters, this includes negotiation, mediation (with or without utilising the collaborative process) and arbitration. For parenting matters, this includes private counselling with an alternative dispute resolution practitioner and mediation.
For these cases, the benefit the client will ultimately receive from the process has the potential to outweigh the cost to obtain that benefit.