Litigation in Family Law Proceedings
Family law litigation is often considered time-consuming, expensive and stressful. Certainly, these drawbacks are common and evident in many family law matters. However, in other cases, litigation can bring an end to a family law matter in a cost and time-effective manner and reduce the emotional toll the dispute is taking on family members.
How Family Law Litigation Can Reduce The Time It Takes To Finalise A Dispute
Depending on the court and registry where family law proceedings are filed, the length of time between starting court proceedings and a final hearing is usually 2 to 3 years. It is therefore unsurprising that litigation is considered “time consuming” and “lengthy”, especially in the context of family law, where parties are seeking to move forward with their lives as quickly as possible.
Reaching agreement out of court is usually more time efficient than litigation. However, out-of-court negotiations require co-operation and a commitment to settle from both sides of the fence. Too frequently, parties are frustrated by the other side’s unwillingness to provide information and co-operation for any negotiations to be fruitful.
Parties may wait months, if not years for the other side to provide essential financial records and other documents, agree to having assets valued and a commitment to mediate or exchange offers of settlement before losing faith and starting court proceedings.
A common misconception with court proceedings is that once they have begun, the opportunity to settle is taken out of the parties’ hands and a judge will make a final determination about the future care arrangements for their children or the division of their assets. This is far from the case, as the vast majority of family law proceedings do not proceed all the way to a final hearing, and of those that do, many settle at the door of the court.
By starting court proceedings, the court will implement timeframes for documents to be exchanges and valuations obtained. There may be consequences, such as costs orders, for non-compliance with court orders that can motivate parties to “co-operate”.
Once court proceeding begin, parties can obtain necessary documents, such as bank account statements via subpoena to the other side’s bank. There is also access to the resources from the court, such as family consultants in parenting matters and conciliation conferences (meetings to discuss financial settlement).
Whilst an attempt to settle a matter prior to commencing court proceedings is always a good idea, in some cases litigation is necessary and will bring about a more timely resolution to the dispute.
How Family Law Litigation Can Reduce Costs
In reducing the time it takes to finalise a family law dispute, a reduction in legal costs usually follows.
Correspondence between parties about issues such as disclosure of financial information prior to the start of court proceedings can quickly amount to large legal bills and little else. You should be advised about when your costs would be better applied to preparing an initiating application and a subpoena rather than another letter to the other side seeking copies of their bank account and superannuation statements.
How Family Law Litigation Can Reduce Stress
Uncertainty about your future parenting arrangements and separation of your finances with your former partner is stressful.
Litigation provides a timeframe for when decisions will be made and opportunities to mediate, discuss your matter with court-appointed experts and attempt to settle. Having a timeframe and smaller stages to work towards can help people manage the stress that uncertainty produces. Interim certainty is also available in the form of interim orders, because 2 to 3 years is a long time to wait with your life in limbo, to manage in the meantime.
Litigation also affords outside perspective from a judge and court registrars who deal with family law matters every day, as well as child psychologists, social workers, valuers and mediators.
The court is required to apply the rules of evidence and follow precedents in deciding matters. Whilst the courts have discretion in deciding matters, parties to a dispute (if properly advised) can have some certainty of the range of outcomes regarding their family law matter if it were litigated. Further, if the family law matter is determined by the court, then usually there is an option to appeal the decision if an error of law is made.
The end result of litigation will provide the parties with a legally enforceable document. Serious consequences can flow if either party does not comply with the orders of the court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.