BY A FAMILY LAWYER

Introduction

Whether or not you should start family law proceedings in Court, depends on the specific details of your situation.

Our family lawyers know when a case can be resolved through negotiation and mediation, or when its necessary to take your case to Court. 

Ultimately, commencing proceedings in Court should be a last resort after all efforts have been made to resolve the issues in dispute without the court process (where it is safe to do so).

Going to Court is a significant step, often laden with both challenges and opportunities. This article aims to shed light on the procedures before filing in Court, and the implications when embarking on that journey.

Pre-action procedures

Before starting proceedings in Court, prospective parties are required under the Family Law Rules to genuinely try to resolve their dispute. This is called taking ‘genuine steps’ to resolve the issues in dispute.

Unless your matter is exempt from comply with the pre action procedures (for example if the matter is urgent or if there are allegations and/or risk of child abuse and family violence), then all prospective parties must comply with the following:

  1. Read and provide a copy of the pre-action procedures to all other parties to the proceedings
  1. Make inquiries about, invite the other parties to and where it is safe to do so, participate in an Alternative Dispute Resolution (ADR) service, such as a mediation
  1. If the ADR is unsuccessful, write to the other party, setting out your claim and exploring options for settlement
  1. Comply with the duty of disclosure
  1. Give notice of your intention to commence proceedings.

Implications

Commencing proceedings in Court also has various implications, and clients should carefully consider the potential consequences before taking this step.

Here are some key implications:

1. Costs

Going to court will mean that your costs will increases as in addition to legal fees, there are other expenses that may be required depending on your matter, including but not limited to Subpoena fees, and or having to call an expert witness

2. Time

The Court system has a backlog of matters, and your matter will likely progress very slowly. For example, it could potentially take up to 3 years to obtain a final judgment in your matter.

3. Emotional aspect

Family Law cases often deal with highly level of sensitive and emotional issues, such as divorce, property settlements, child custody, and spouse maintenance. Going to Court is more emotionally challenging particularly as you are exposing all of your family issues in a public forum for others to hear, rather than in a private space.

4. Control

Parties that go to court lose some control of being able to make decisions in their matter and have no option but to accept Orders made by the Court where Orders cannot be made by consent.

5. Trial process

If the case proceeds to trial, a judge will make a decision based on the evidence presented.

The outcome may or may not align with the expectations of the parties involved.

Presenting evidence, cross-examining witnesses, and adhering to court rules are integral parts of the trial process.

Need help going to Court?

Going to Court requires careful consideration, preparation, and understanding of the legal implications.

Whilst going to Court is emotionally challenging for parties to a matter, have a lawyer navigating this experience with you will ensure that each party to the matter has the best chance of achieving a just and equitable resolution.

Our team of Family Lawyers are experienced in dealing with cases/matters that go to Court, from preparing consent orders, right up to final hearings and appeals.

It is our mission to deliver clear, timely and relatable advice for all our clients, and to make you fell. Safe Supported, Reassured

Contact us, email info@cominoslawyers.com.au or call 02 8999 1800.

Disclaimer

If you have a legal issue, you should contact a lawyer before deciding about what to do or applying to the Court.