Litigation

Litigation is generally the last resort for resolving a legal dispute. Notwithstanding that, litigation may not be avoidable. Litigation may be essential to receive an outcome that is either in the best interests of the children or for a financial matter, orders that provide a just and equitable result.

At Patford-Smith Legal Services, our team of litigation lawyers are dedicated to walking you through the intricacies and potential outcomes of your current situation. We offer top-notch advice, coupled with actionable and practical solutions tailored to your case.

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.

Engaging in litigation comes with various drawbacks that individuals may encounter throughout the court process. These drawbacks include:

1. **Uncertainty of Outcome:** There is no guarantee of a predetermined outcome in litigation. While lawyers can offer advice on potential court orders, judges and registrars have inherent discretion, making outcomes unpredictable.
2. **Time-Consuming Process:** Litigation is often a protracted and time-consuming endeavor. Delays in court systems can result in years of concern and stress regarding ongoing proceedings and potential claims between parties. Financial entanglement and dependency on the other party may persist while awaiting a court decision.
3. **Significant Costs:** The financial burden associated with litigation is substantial. Ongoing correspondence, preparation of court documents, legal representatives’ consultations, and court appearances contribute to significant out-of-pocket expenses.

4. **Emotional Impact:** Litigation can have a damaging emotional effect on the involved parties. Continuous conflict, the potential stress of facing one’s ex-spouse, and court appearances can be emotionally taxing. Additionally, progressing a case in court often involves making negative statements and allegations against the other party, undermining the possibility of maintaining an effective post-separation relationship, particularly in parenting matters.

   In the event of family court proceedings, parties are afforded the chance to negotiate their own settlement at each stage of the process. The majority of divorcing couples opt for this approach, with only approximately 5 percent of cases progressing through the entire Family Court process in Australia to reach a final hearing and judgment.

Family Court Process

The family court process in Australia encompasses various stages, with the specific steps depending on whether the case involves parenting matters, property matters, or both. Generally, the family court trial procedure includes the following steps:

1. **Preparation and Filing of Family Court Documents:**

   – Initiating Application: The party initiating the action files an Initiating Application outlining the desired orders.

   – Affidavit: Accompanying the application, a sworn statement (Affidavit) presents the applicant’s evidence.

   – Financial Statement: In property matters, the applicant completes a Financial Statement detailing financial circumstances.

   – Response to Initiating Application: The responding party files a response, including orders they seek, an Affidavit, and, in property matters, a Financial Statement.

2. **First Family Court Date:**

   – Procedural Orders: The first court date, occurring approximately 6 to 12 weeks after filing, involves the court making procedural orders on how the matter will proceed.

3. **Interim Hearing:**

   – Interim Orders: If interim orders are sought, the court may schedule an interim hearing. This involves judges reading Affidavits and hearing oral submissions from parties or their lawyers to determine temporary orders.

4. **Conciliation Conference:**

   – Mediation Opportunity: In property matters, parties may participate in a Conciliation Conference, akin to mediation, aimed at reaching a final agreement. If successful, Consent Orders are made, finalizing the matter.

5. **Child Dispute Conferences:**

   – Parenting Matters: Parties involved in parenting matters attend a Child Dispute Conference, discussing issues with a court-appointed Family Consultant to reach an agreement. A report summarizing recommendations is prepared for the judge.

6. **Family Report and/or Expert Report:**

   – Parenting Matters: Before a final hearing, parties and children are interviewed by a Family Consultant or external Psychiatrist, resulting in a detailed report with recommendations.

7. **Final Hearing:**

   – Settling Unresolved Issues: If no agreement is reached, the matter proceeds to a final hearing, usually lasting one to three days. Parties present sworn Affidavits and give oral evidence in court.

8. **Judgment:**

   – Post-Hearing Decision: After the final hearing, a judge delivers a decision within about three months, providing a supporting explanation. Parties are notified of the date for receiving the decision and are required to attend the Family Court.

Patford-Smith Legal Services lawyers are resilient, devoted, and ready to advocate on your behalf. With considerable litigation experience, our legal team is prepared to pursue and represent your case energetically and diligently.

Our Family Lawyers are highly skilled in family law litigation. They collaborate closely with specialised family law barristers to navigate complex court matters, striving to achieve your desired outcome.