Court – The end of the line?
Whilst at Advance Family Law, we are settlement focused and initiating proceedings in Court is always as a last resort, we are also realists and are aware that some matters, or more to the point, some parties, just need Court.
By that we mean that in situations where one party will not cooperate in negotiations and attempts to settle matters in an amicable manner, there is only so much time, effort and money that should be expended in trying to convince them to cooperate. In these circumstances, it is quite often our advices to initiate Court proceedings, so the Judge can strictly case manage the matter towards settlement, for instance, issuing directions for each party to exchange disclosure documentation, for valuations of particular assets to be obtained and making Orders requiring both parties to attend Mediation. We often find that where one party may have been uncooperative in the process, after having to face the Judge in Court, their position changes and they become more cooperative, leading to an ultimate settlement. In these circumstances, the parties can formalise their agreement by way of Consent Order, which is then approved by the Court and in most circumstances, there is no need to even attend Court for such Order to be made, as a joint letter of the parties can be sent to the Judge’s Associate seeking that the Consent Order be approved and the Orders be then made by the Judge “in chambers”, effectively meaning, in their office without any need for further Court attendance.
The Federal Circuit Court of Australia has recently commenced a program to assist in the timely progression of property settlement matters before the Court, known as the Discrete Property List. Such process involving attendance before a Registrar in the early stages of a matter in a more timely manner, such Registrar being responsible for case managing the matter towards settlement. The matter is only referred to a Judge if the parties are unable to agree and the Court needs to make a determination.
It is our experience that less than five percent of matters that are filed in the Family Courts ultimately lead to trial, considering the high rate of settlement in the system due to the case management of each matter.
Whilst the focus of this Blog has been on property settlement matters, the same can be said for parenting matters in terms of some matters or parties, just needing Court. In parenting matters, it is not uncommon that after independent evidence is to hand in the form of say a Family Report, that the parties reality check their positions and a compromise is reached, thereafter Orders being made by the Court by consent.
Should you believe that your matter may need Court, do not be concerned that it is the end of the line and your matter is going to Trial. It is our experience that this is usually not the case. Court is not all doom and gloom and the case management capacity of the Court can be invaluable in some matters.
If you have any questions arising from this Blog or any other family law question, please contact one of our Gold Coast Family Lawyers or Logan Family Lawyers on (07) 5679 8016, for free family law advice.