Going to Court

Despite practising in family law for almost 3 decades, I still haven’t met anybody who wanted to go to court.

So I understand that that’s not your preferred option.

However, as with many other areas of family law, there are a lot of misconceptions and misunderstandings about going to court.

If we are going to talk about going to court, there are four things that I would like to tell you, bearing in mind that I understand you don’t want to go to court, and I am not going to advise you to go to court if there are better options available. These are the four things:

  1. Of all the people who start a family law court case, in my experience there are less than 1% who end up actually going all the way to a hearing in front of a judge. 99% of people who start a court case then manage to reach an agreement with their ex-partner. Usually it is the commencement of the proceedings that motivates people’s ex – partners to negotiate sensibly.
  2. Going to court is not necessarily more expensive than resolving family law problems in other ways.
  3. Going to court is not necessarily stressful or scary or damaging to children. In fact, often it is a far better alternative than allowing disputes to continue.
  4. Going to court does not mean that it will take longer to get your family law matter resolved. Often, in fact, it is the quickest way of getting your family law matter settled.

Some of that might sound like I’m encouraging you to go to court. I’m not necessarily. But part of my job is to listen carefully to you about your family law problem and give you the various options how to properly resolve it in the quickest, most cost-effective manner. Sometimes, that will be to advise you to go to court.

Simply put, the reason why we have family courts is that it is not always possible to reach agreement directly with your ex-partner. Sometimes, it is necessary to use the system.

What won’t help you is engaging a lawyer who doesn’t understand how the court system works, or who is scared of it. Don’t make a mistake – there are plenty of lawyers practising in family law who fall within those descriptions. Many clients who come to me have been to other lawyers before, who have generated files of correspondence the size of small mountains writing backwards and forwards to their ex-partner or their lawyer and got precisely nowhere after months or even years of negotiating. This is a waste of not only your money, but your time.

My view is that we should always try to negotiate a solution outside the court system. However, unreasonable amounts of time and money should not be wasted in negotiations. If negotiations are going nowhere, then it is often sensible and cost-effective for court proceedings to be issued.

As I said before, 99% of people who issue court proceedings are then able to reach a settlement without going all the way to a hearing in front of a judge. Sometimes, the only way to get your ex-partner to listen or take you seriously, or engage in sensible negotiations, is to force the issue by commencing proceedings.

There is simply no point in spending money engaging in protracted negotiations that go nowhere. It is a far better spend of your money, if that is what has been going on in your family law matter to issue proceedings, which will bring negotiations to a head.

The family court system has been designed to help people resolve their problems. If you issue proceedings, you do not go directly to a hearing. There is a process that I will explain to you that you go through which results in almost all matters being settled by agreement.

In my experience, around 66% of my clients who issue court proceedings settle the case with their ex-partners within four months. 33% settle the case somewhere between four months and a final hearing date. Only 1% end up in a final hearing.

Compare that with:

  • paying a lawyer to write letters backwards and forwards sometimes for years and get nowhere;
  • the ongoing emotional uncertainty and damage that you suffer while your matter is not resolved;
  • the financial cost to yourself of not achieving a final settlement of your family law matter for months or years while your lawyer writes letters backwards and forwards to the other side;
  • the risk that you continue to be exposed to while a barrage of letter writing continues.

Going to court is a serious step that you would never take without being properly advised. Equally, not going to court can be a serious mistake sometimes.

I am both a barrister and solicitor. I am confident and experienced in conducting court hearings and I am able to give you clear advice as to whether, in your particular circumstances, this is in fact the best solution for your family law problem.

If you need assistance contact me at andreww@andrewwarren.com.au or call one of my offices for a no obligation discussion and for expert legal advice.