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 by way of an Application for Consent Orders or a Financial Agreement (in the case of 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.

In the event parties cannot reach agreement as to resolve their property settlement or their parenting dispute, there is unfortunately no other option by to commence proceedings at Court for a Judge or Registrar to make final Orders. This occurs by a Judge hearing the dispute in a hearing. A 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 during the Court proceedings prior to the matter reaching a hearing, or indeed, 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 commence court proceedings to resolve your 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 prospective 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 is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement; and
  • Comply, as far as practicable, with the duty of disclosure.

Parties are not necessarily required to comply with pre-action procedures in cases involving the following circumstances:

  • 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 last 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 Family Law Act 1975 (Cth) 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 commence litigation and force the other party to also put their position before the court; rather than to continue to spend money on correspondence, pre-action procedures and negotiations where there is no prospect of settlement in sight. 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 assistance by 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.

WHERE TO NEXT?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

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