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Correcting Common Misconceptions about Court

By 24 May 2019General

Often times family lawyers hear the familiar catch cry of “I’m taking him / her to Court”.

Whilst normally said at a particularly emotional time, and often immediately after separation or after one party has done something hurtful, it seems that people have a false understanding as to what they may achieve by entering the Family Court system (which incorporates the Family Court and the Federal Circuit Court of Australia). Sadly, often people leave the Court system feeling disillusioned, unhappy and ultimately resentful towards the system that has robbed their life of months or years of peace.

Some things to bear in mind if you are considering applying to the Court include the following.

  1. All of your legal problems will not be resolved on the first Court date.

Unfortunately, the judge has limited time to deal with the many matters listed before him or her on any one day. As such, the judge is not in a position to determine the facts and to make a decision about what orders should be made on a final basis in regards to either the care arrangements for your children or what property each of you are to retain on the first Court date. The judge generally will make orders addressing the most urgent issues or those of a procedural nature which allow the matter to progress, hopefully towards resolution between the parties. Unless the matter is resolved by an agreement being reached between the parties then you will not obtain final orders on the first Court date.

  1. There will not be a winner and a loser.

In fact, in family law often times both parties leave the Court system feeling as though they have lost and in some cases they will have, both emotionally and financially. It is unusual that one party achieves orders that are entirely in their favour. It is often the case that orders made represent a middle ground being reached between the respective parties’ positions.

  1. Even if you are successful the other party will not necessarily pay your legal costs.

Generally, in family law each party pays their own legal fees. In some exceptional circumstances, a Court may order a party to pay the other party’s legal costs, however this only occurs when one party has been wholly unsuccessful in their application (which is unusual given there are not normally winners or losers) or when the matter could have been resolved by the acceptance of a more favourable offer earlier in the proceedings. Even if you are successful in getting a costs order, this very rarely covers the actual costs incurred by you. Instead it normally covers the costs allowed for in the Family Court scale of costs, which is generally lower than the actual costs incurred.

  1. The judge will not have read every document you have prepared and have a full understanding of your circumstances before you attend Court.

In a perfect world this would occur, however the current Family Court system is significantly overburdened and judges have an unmanageable number of cases in their lists. This often results in judges not having the opportunity to consider all documents prepared by the parties prior to the first Court date. If the matter proceeds to a trial, the judge will read all of the Court documents, however there is no guarantee that this will be considered in detail prior to the first Court date. However, these documents are still valuable as they are also used for other purposes, including being considered by a family report writer in parenting matters.

  1. The judge will not speak directly to your children to ascertain their wishes.

In Australia, Family Court judges do not speak directly with children. Instead children’s views are considered by a family consultant who then prepares a family report for the judge outlining these views. Family consultants are trained in communicating with children and, as such, this is done in an appropriate and comfortable setting. The judge then considers the children’s wishes by reading the family report, before making a decision in regards to the children’s care.

Unfortunately, the Family Court system in Australia is significantly under resourced. There are not enough judges for the volume of matters that come before the Court on a daily basis. As a result of this, and through no fault of the judges, this often results in outcomes for families that are less than perfect. Whilst in some cases Court intervention is necessary, we strongly recommend that you consider alternate options in regards to resolving your dispute. This can include negotiation, mediation, arbitration or a variety of other conciliatory methods which assist parties in reaching an outcome without the uncertainty, time delay and cost of bringing an application to the Court.

Consider, will applying to the Court actually achieve the outcome you desire?

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