Litigation - Cost/Benefit Analysis

It is not the objective of family lawyers to have their client’s matter proceed to court, that is, to have the court determine the outcome through litigation. Parties to the family law matter can agree to settle their matter by consent and have their agreement made enforceable via an application for consent orders or a financial agreement (for property matters only). These documents should be at the very least reviewed by a family law practitioner to ensure all matters have been dealt with correctly and the agreement is enforceable.

If parties cannot resolve their property settlement or their parenting dispute, there is no other option by to but to start court proceedings for a judge or registrar to make final orders.  The hearing involves the parties each presenting evidence and testing each other’s evidence on their respective orders sought.

Parties can however resolve their matter by consent at any time before a hearing or during the hearing. Either a judge or a registrar can make orders that are reached by consent between the parties.

When making the decision to start court proceedings to resolve a family law dispute, parties need to be aware that pre-action procedures are expected to be followed by parties. The Family Law Rules 2004 require parties to genuinely try to resolve their dispute before starting a case, which includes:

• participating in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration;
• if dispute resolution fails, writing to the other parties, setting out their claim and exploring options for settlement; and
• complying, as far as practicable, with the duty of disclosure.

Parties are not necessarily required to comply with pre-action procedures in cases:

• involving urgency;
• involving allegations of family violence;
• involving allegations of fraud;
• where there is a genuinely intractable dispute (for example, where one person refuses to negotiate);
• where a person would be unduly prejudiced or adversely affected if another person became aware of the intention to start a case (for example, where there is a genuine concern that the other person would attempt to defeat the claim if they had this prior knowledge);
• where a time limitation is close to expiring;
• where there has been a previous application about the same issue or subject in the past 12 months; and
• where there is a genuine dispute about either the existence of a de facto relationship, or whether a party’s choice to agree to the jurisdiction of the Act in relation to the property or maintenance of a party to a de facto relationship should be set aside.

Finally, another factor parties need to be aware of is cost. In some cases, it is a better use of legal fees for a party to instruct their legal representative to prepare court documents to start litigation and force the other party to also put their position before the court, than it is to continue to spend money on correspondence, pre-action procedures and negotiations where there is no prospect of settlement. However, parties should be aware that when orders are made by the court during the proceedings, parties must comply with the orders and this usually involves help from their legal representative. If there are many issues before the court, the costs of running the litigation can increase quite quickly. Furthermore, there are some filing fees and court costs involved in the proceedings that cannot be avoided.

For advice or representation in any legal matter, please contact Armstrong Legal.