Director Ann Northcote revisits her article ‘Litigating the clever way’
Family law disputes often involve situations where one party needs a resolution more than the other. For example, if the wife has moved out of the former matrimonial home and she is now renting her own place, whereas the husband has continued to live in the home and he doesn’t have a mortgage to pay, then the wife’s level of urgency is greater. Similarly, if the children are living with their mother and not seeing their father, then the father needs the situation to change more quickly than the mother.
These situations are exacerbated because the ‘status quo’ established immediately after separation, both in property and parenting situations, can have a significant or even determinative effect on the final outcome. Where there is urgency, such as the need for a restraint to stop one party liquidating a trust fund or to stop a parent abducting children out of Australia, the stress is heightened further and the urgency rises to a new level.
Litigation can be financially and emotionally difficult for people, if not properly managed. Further, in many situations, lawyers are unable to give their clients a satisfactory answer as to how long a case will take, and exactly how much it will cost, or to guarantee what the outcome will be.
With all those ‘cons’, it is understandable to think; why would anyone start Court proceedings? Sometimes, however, there is no choice. Some people are unwilling to negotiate, or they take provocative steps, with money and children, which leave the other party with no option but to go to court. Sometimes one party takes a “head in the sand” approach and refuses to deal with the issue. Many months of emotional angst and thousands of dollars can be spent writing letters, sending invitations to mediation, and trying to find creative solutions. Attempts to avoid Court are often fruitless. Ultimately, there are only two ways a dispute can be resolved; by agreement of the parties or by Court intervention.
There are ways to minimise the financial, emotional and time costs of litigation. The most important of these is to make sure every client understands what is happening at Court, the restrictions imposed by the process, and the opportunities to end the litigation by settlement.
Ensuring that clients have proper emotional support – from family and friends and also from professionals – is important. Firstly it is important for maintaining a good state of mind through a process that can last up to two years. Secondly, decisions in the Family Court are often ‘black and white’ decisions about financial matters – cost/benefit type decisions. Clients who are able to separate the emotional from the financial make better decisions earlier in the process.
Once litigation commences it is important not to just “go through the motions.” Each case has to be tailored to the client’s needs. Being proactive, using the litigation techniques that are available as to collating necessary information and using experts such as financial planners, child psychologists and superannuation experts can generate a better and often quicker outcome. Most people do not know that of 100 cases that start in the Family Court, only approximately 7 are ultimately determined by a Judge. The other 93 settle.
Litigation is not easy, but sometimes there is no other choice. The court process has inherent uncertainties and challenges. It is a difficult and complicated process that can, without good management, get out of control. Having an experienced family lawyer who you can talk to in order to help understand what is going on is a huge plus.
However, in addition, having a family lawyer who is client focussed from the outset, who knows when to litigate and when to hold off, who helps the client manage the fees, makes appropriate referrals to support services and who manages the inevitable shortcomings of the court system, will mean that whatever the outcome, the client will be satisfied that the most professional job was done.