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What you need to appreciate about the Court Process

Often when tensions are high, a frustrated former spouse might threaten the Court process “see you in Court” “I’m taking you to Court” “Let the Judge decide” and variations on that theme. There is a brutal reality to the Court process that must be understood before steps are taken to threaten or initiate proceeding.

1. In many instances, you’ll need to mediate before you can commence court proceedings (In all but exceptional circumstances, parents in conflict must mediator, called family dispute resolution, before commencing proceedings)

2. Litigation is expensive

3. The Court Process is focussed on parties reaching agreement, so conciliation, mediation and/or the exchange of offers are frequently an obligatory stop before any judicial determination

4. You can expect on your first return date to be one of thirty to forty matters, you are unlikely to be afforded any opportunity for an interim hearing

5. In many instances the Court will be reluctant to depart from the recommendations of a Family Report Writer (who is generally a specialist in child development who meets your family and forms a view in relation to the best way forward)

6. Litigation is expensive

7. You may wait 12 to 24 months before being afforded a final hearing

8. Even after a final hearing, given the high demand on the Court, you may wait a significant period for a judgment to be delivered

9. At a final hearing, a Judge is unlikely to find that one party will prevail over the other, whilst obviously bound by legal authority and the legislation, where possible the presiding judicial officer will endeavour to preserve a parenting relationship such that neither party is necessarily perceived as the victor

10. Your matter is unlikely to be the only matter listed for final hearing before a particular Judge. Sometimes you will be sent away to a further Court Date, irrespective of the financial loss to you

11. The Court will consider compliance with Court Order to be exceptionally important. Any failure to abide a Court Order may compromise your prospects

12. In a parenting matter, it is rare for one party to be ordered to pay another party’s legal costs

13. The Court is unashamedly focused on the interests of your children, not your interests

14. The process may irreparably compromise any prospect of a couple peacefully co-parenting in the future. People get terribly hurt.

15. A Judge may not share your strong view as to the behaviour of your former spouse – remember the Court routinely observes parents at their worst

16. There are some exceptional lawyers on the bench of the Federal Circuit Court of Australia and Family Law Courts. That said, they are human, and mistakes do occur. The Appeal process is intended to counteract those mistakes but again at great cost and with even greater delay

17. There are a limited number of options available to the Court in the context of the property settlement. Mediation and/or a Collaborative Process have potential to embrace more creative outcomes.

18. Did I mention that litigation is expensive ?