Court proceedings resulting from a relationship breakdown can be emotionally challenging - litigation is a big step which should not be taken lightly.
Our role as lawyers is to ensure that our clients and their advisors (eg financial professionals) are aware of the process, its advantages and also its shortcomings, including the emotional and financial cost, downtime and delays and also some degree of uncertainty.
In this article we look at what you can expect from the Family Court process.
Deciding to pursue litigation in the family courts
Unless there are urgent immediate issues, the law requires you and your former partner to first attempt Alternative Dispute Resolution (ADR) before commencing litigation. In financial proceedings, for example in relation to a property settlement, this includes proper financial disclosure and an attempt at mediation / conciliation.
In some financial cases, litigation is both necessary and inevitable. For instance:
- where there are urgent issues regarding security on bank accounts, improper dealings with investments or property, or disposition of commercial interests; or
- where there is total inflexibility by one party, who is simply not willing to respond to ADR attempts, or to negotiate in a timely manner or in good faith.
How does the Family Court process work?
There are essentially two major phases in the court process:
- The conciliation phase: where the courts will direct that there is first a process of evaluation and document exchange to support a conciliation/mediation conference.
- The determination phase: this phase commences if the case is not resolved via conciliation/mediation, and entails the preparation of court material leading to a trial before a judge.
Duty of financial disclosure
There is an ongoing duty of financial disclosure throughout all parts of the process. Failure to meet these obligations can have serious consequences. For example, if one party is found not to have met their financial disclosure obligations, it can lead to the settlement being legally void. This can have associated cost implications, along with an obvious loss of credibility in the eyes of the court. Importantly, this can occur even years after the settlement has been agreed and finalised.
Getting the right advice
It is important that there is a strong relationship between you, your financial professional/s and your lawyer to ensure that you are in the best possible position to make informed strategic decisions about your situation.