Resolving disputes through litigation

In this article we will discuss litigation as an option to resolving family law disputes. We will look at the benefits and the cost of litigation; common mistakes people make and what to look out for when deciding to litigate.

We will also provide you with information on what to expect if your matter proceeds to a Final Hearing and you are required to give evidence in the witness box.

Many people think that initiating litigation is too aggressive and some even say you should only use it as a last resort. That might be true, and negotiating an agreement certainly has many advantages, but it is not always possible. Sometimes litigation is necessary; and often starting litigation actually speeds up the negotiation process by putting deadlines in place. You could still settle the dispute by consent and end up saving time, money and unnecessary emotional stress. 

Before we discuss litigation, you need to know the following.

• To initiate legal action, you need to file an Initiating Application in either the Family Court of Australia, the Federal Circuit Court of Australia or another court with conferred jurisdiction, like the Local Court of NSW. See below.

• You need to meet certain criteria to confirm that the Specific Court has jurisdiction to hear your dispute, or you need an exemption for not meeting a specific condition to confirm jurisdiction.

• You may be required to comply with other pre-action procedures. See below.

• Once litigation is started, you have to follow the rules and procedures of the Court, and you may be directed to attend conciliatory court sessions after litigation commenced to try and settle the dispute by consent.

• Depending on the issues in dispute, the Judge or Registrar may be required to consider the evidence and make an interim determination. Final orders will then follow later.

Take note: A parent, a person who is a significant person to a child, a child, or even a business entity, can initiate litigation regarding parenting and financial issues. It is not limited to married or de facto couples.

The benefits of litigation

It provides urgent relief

If there is a risk that the property pool may be depleted, or there is a risk that a child will not be returned if he/she travels overseas, immediate action may be needed. Urgent relief can only be granted through a court order obtained by initiating litigation. You would need to apply for an injunction to prevent the child from travelling overseas or to restrain the other party from dealing with assets.

It ends with a clear outcome

If you and your partner cannot reach an agreement and a determination is needed, you may have to litigate to obtain a result, or an order that is in the best interests of the children or is just and equitable. Litigation will provide an outcome.

It is enforceable

The outcome of litigation will provide you with a legally enforceable document. Non-compliance to the Court order will have serious consequences to whoever does not comply.

It sets precedents

Litigation can set a precedent that can provide some indication of the range of outcomes that you can expect regarding your matter, if the same issue was litigated before. The court always has discretion when deciding on your issue, but it needs to follow the rules of evidence and precedents in similar matters. In this way past litigation can provide some certainty relating to the outcome of your case.

You can appeal

If an error in law occurred in the determination by the Court, you usually have an option to appeal the decision.

What to consider before choosing litigation

If you choose to litigate, you must be aware that you may be expected to follow certain pre-action procedures and you need to consider the cost of litigation.

Pre Action Procedures

The Family Law Rules 2004 require parties to make a genuine effort to resolve their disputes before initiating litigation. You may be required to:

• Participate in family counseling, negotiation, conciliation, arbitration or any other dispute resolution services.
• If the abovementioned services are unsuccessful, you may be required to write to the other party setting out your claims and exploring options to reach a settlement.
• You will be required to comply, as far as practicable, with the duty of disclosure of certain information.

In certain circumstances you might not be required to comply with pre-action procedures. Circumstances would include matters:

• Requiring urgency
• Involving allegations of family violence, or allegations of fraud;
• Where the dispute is genuinely unmanageable, for example one party absolutely refuses to negotiate.
• Where prior knowledge of the intention to litigate could unduly prejudice, or adversely affect a party,
• Where a time limitation is close to expiry
• Where there was a previous application about the same issue in the last 12 months
• Where there is a genuine dispute about whether the parties are in a de facto relationship,
• Where there is a dispute as to whether a party’s choice to agree to the jurisdiction of the Family Law Act 1975, in relation to property or maintenance of a party to a de facto relationship, should be set aside.
   

The cost of litigation

The cost of litigation can increase quite quickly, especially if there are many issues before the Court. There are also some set filing fees and court costs that cannot be avoided. If the Court makes an Order, both parties must comply with the Order. This often requires explanations and assistance by your legal representative, which will lead to further legal costs.

Having said that, in some cases it is worth the legal fees to instruct your lawyer to prepare court documents to initiate litigation and force the other party to put their position before the court as well. Often you spend money on correspondence, negotiations and other pre-action procedures, but there is no real prospect of reaching a settlement, and you will end up in court anyway.

You can still settle

It is important to remember that commencing with litigation does not terminate your right to reach consent. You can still resolve your matter by consent at any stage before or during the hearing.

It should not be the aim of your family lawyer to have the Court determine the outcome of your family matter through litigation. If you and your partner can agree on matters, at any stage of the proceedings, your agreement can always be made enforceable by applying to the Judge or Registrar for a Consent Order or a Financial Agreement. Your family lawyer should review these orders/documents to ensure that it deals with all the relevant matters correctly and that the agreement is now enforceable.

Common mistakes to avoid

Family law matters can generally be divided between issues relating to property and those relating to parenting.  In both areas people make mistakes that can easily be avoided. Let’s consider the following:

Don't involve the children unnecessarily 

Unfortunately one of the most common mistakes parents make in a family law dispute is to involve the children unnecessarily. Don’t involve your children in the bitterness between you and your spouse. It is a big mistake and does not add anything to the wellness, interests or development of your children. In fact, it can be quite damaging for your child. That should be reason enough not to involve your children, but if not, you might want to consider your credibility before the Judge.

Involving you children unnecessarily will not promote your parenting skills and it will certainly not convince the judge that you are acting in the child’s best interests. Telling your child about the areas of dispute between you and their other parent, or speaking badly about the other parent or his/her family just shows that you lack insight into what is best for your child. It has absolutely no benefit in your family law matter and it is just wrong.

Beware of social media

It is so easy to vent your frustrations on Facebook, or Tweet about an annoying thing that your partner said or did, or even about something the judge said or did. Be very careful about publishing information on a public forum about court proceedings or about a party to court proceedings. Section 121 of the Family Law Act makes it an offence to publish information that could identify someone involved in a Family Law matter before the Court. Not only is it illegal, it can also be strategically disastrous for your family law matter. Ask yourself: Will this post or tweet portray a mature parent with the children’s best interest at heart?

If you are concerned about your level of self-control you might want to consider deactivating your social media profiles until after your family law matter is finalized.
 

Non - Disclosure

Non-disclosure of financial information in property and financial matters is not only against the law; it is also a sure way to shatter your credibility before the court. Often, failure to disclose prevents a matter from being resolved during pre-action procedures and it will make it almost impossible to redeem oneself before the court at a later stage. The inevitable inference against a party who failed to disclose is that he/she has something to hide, and that he/she is trying to mislead the other party and the court. It will be very difficult for a party who is seen as potentially dishonest, to be regarded as a credible witness.

‘Without prejudice save as to costs’

You might be inclined to make a settlement offer during pre-action procedures. By making an offer you are exposing your best offer and you run the risk that the terms of your offer can be used against you at a later stage. You can however avoid the possibility that it can be used against you by adding the preface ‘without prejudice save as to costs’ to the offer. This basically means that the offer cannot be used against you in court, except in an application for legal costs. Forgetting to preface the offer with these words is a common mistake people make. Ensure that it cannot be held against you by adding the preface.

Disadvantages of litigation

As we’ve said before, litigation might be unavoidable and necessary to reach an outcome that is either in the best interests of the children or obtain orders that is just and fair financially. There are, however, certain pitfalls that you must be aware of if you find yourself involved in litigation.

The cost is signficiant

Your legal representative will spend many hours on ongoing correspondence, preparing court documents, consulting, advising and preparing you for the hearing, and attending court proceedings. The time spent on your matter and the associated legal costs can be substantial.

It is a drawn out process

Court roles are full and there can be many delays in the court system. As a result it can take more than two and a half years from filing your Initiating Application (to commence with litigation) until you obtain a final determination by the court. This means that you will live with the uncertainty and concern of future court proceedings and/or potential claims against you for a significant period. Depending on your circumstances you could also be financially dependent on the other party, or your finances might be so intertwined that you cannot function independently for a number of years pending the courts final determination.

The outcome is never certain

Judges and Registrars have an inherent discretion when considering your matter and deciding on final Orders and directions. Your lawyer can advise you on what to expect and what possible orders the court could make, but there are no guarantees. The outcome of litigation is never 100% certain.

Litigation is stressful

You will have to come face-to-face with your ex-spouse. Conflict is often ongoing and during the court proceedings it is sometimes necessary to make negative statements and allegations against your ex-spouse. You may also be on the receiving end of the negative allegations. You need to consider the potential pressure and the emotional toll litigation can have on you, as well as the fact that litigation can be destructive for any post separation relationship with your ex-partner. This could have a significant impact in parenting matters.

People often do or say things in the heat of the moment, only to regret it later. A good family lawyer can help you to avoid any of these common mistakes people make and can advise you on the advantages and disadvantages of litigation.

In which court should you file your proceedings?

The issue that you need a determination on and a convenient location will mainly determine the Court where you will file. You have a few options of where you can file your parenting, property, spousal maintenance and child support matters following the breakdown of your marriage or de facto relationship.

The issue vs The location of the court

The Family Law Act is a Commonwealth Act and the Family Law Division of the Federal Circuit Court and the Family Court of Australia are specialist Courts in dealing with Family Law matters.

The specialist courts and the judiciary are better equipped to deal with family law issues, but where you live and what is convenient for you and the children are also important factors in deciding in which Registry you should file. If for example you and your children live in one area, but the property in dispute is in another area, it might be better to file at the court closest to where you live.

Take note: If you file in a Registry that is inappropriate for the issue or it is inconvenient for most parties to the litigation, the Court can transfer the matter to another more convenient or appropriate Registry or Court on their own motion, or on an application by either party. Some decisions about location may be determined by the delay at a specific Registry.

You do not have the right to appeal such a decision to transfer.

The federal circuit court of Australia

This Court is a division of the Federal Court of Australia and deals with the majority of family law matters in NSW and Australia.

NSW has Federal Circuit Courts in Sydney, Parramatta, and Newcastle.

Other locations such as, Wollongong, Albury, Armidale, Broken Hill, Coffs Harbour, Dubbo, Lismore, Orange, Tamworth, Wagga Wagga and Wauchope are served by a Circuit Judge that visits between once a month to once a quarter.

Local and magistrate courts

Part 7 of the Family Law Act, section 69J gives jurisdiction to Local Courts in parenting matters and section 39 of the Act grants jurisdiction to deal with matrimonial matters.

Each State has its own Local or Magistrate Courts that have jurisdiction in family law matters, but they are not specialist Courts. Therefore if there is a nearby Family Court or Federal Circuit Court in that area, most Local Courts will not deal with your matter.

In NSW the Local Courts generally only deal with family law matters in more rural or regional towns that are not serviced, or regularly serviced, by the Federal Circuit Court.

In capital cities, the Local Court usually only deals with Application for Consent Orders, or in contested matters involving urgency (where there is a delay in other Courts).

In major cities the Local Courts do not generally deal with contentious family matters or matters that are not agreed on. Sec 46 (property) and Sec 69N (parenting) of the Family Law Act states that matters must be transferred to the Federal Circuit Court or the Family Court of Australia after the first Court event, unless all the parties agree that the matter may be heard in the Local Court.

The family court of Australia

The Family Court and the Federal Circuit Court often sit in the same building, but the Family Court is the superior court of record between the two. The workload is divided between the two Courts by way of a fixed protocol that allows the Chief Justice and the Chief Judge of each Court to properly allocate resources between the Courts to provide a better service to all litigants.

There are 8 criteria that would indicate that the matter should be dealt with in, or transferred to, the Family Court rather than the Federal Circuit Court.

The criteria are:

• Matters involving international child abduction.
• Matters relating to international relocation of either the parties and/or the children.
• Disputes as to whether a matter should be heard in Australia or overseas.
• Matters involving special medical procedures  such as gender reassignment or sterilisation.
• Contravention of Orders, or related Applications, in parenting matters that have been made by the Family Court of Australia and have reached a final stage of hearing, or a judicial determination which have been made within the 12 months prior to filing the Contravention.
• Serious allegations of sexual abuse of a child warranting transfer to the Magellan List or a similar list where applicable, and
• Serious allegations of physical abuse of a child, or
• Serious controlling family violence warranting intervention by a superior Court.
• Complex questions of jurisdiction or law.
• If the matter proceeds to a Final Hearing and it is likely to take in excess of four days of hearing time.

Your matter must meet at least one of the criteria to be heard in the Family Court, especially if you are applying for the matter to be transferred.

When a matter is required to be transferred to either the Family or the Federal Circuit Court, the matter should be transferred sooner rather than later within the proceedings. It is general procedure that the Court that deals with the interim work should be the same Court that deals with the final work on the matter. This ensures proper and efficient management of your matter through the Court’s system.

Take note: In matters relating to adoption and the validity of marriages and divorces the Family Court of Australia has exclusive jurisdiction.

The location and which Court you commence with litigation is an important decision. It is important that you make the right decision to avoid any unnecessary delays and extra legal costs. A family lawyer with experience in litigation will be able to advise you on the appropriate Court to file your proceedings.

Giving your evidence

In most family law proceedings you will not be asked to give evidence orally until your matter reaches the Final Hearing stage.

Before you enter the witness box you need to be prepared. You must ensure that you are familiar with all the information set out in any Affidavits prepared on your behalf and any other documents prepared as part of your litigation. Also consider any other notes, diary entries, letters, text messages, receipts, social media posts and so on that were used in preparation of affidavits and other court documents.

Take note: If there is a mistake in your affidavit, you need to make a correction in Court, before you provide your substantial evidence in the witness box.

When called to give your evidence, you will be asked to swear an oath (on the Bible) or make a solemn affirmation to tell the truth. Both have the same effect; you are bound to tell the truth. Simple advice – Be honest.

Once you are sworn in, you will provide evidence in 3 stages.

1. Examination in chief

Your legal representative will commence with examination in chief for you to present your Affidavit to the Court. He/she will start by confirming details of the witness, your name, address and occupation, the date the Affidavit was filed and raise any corrections that must be made, if any.

2. Cross-examination

After presenting your evidence in chief to the Court, the lawyer of the opposing party will have the opportunity to test your evidence during cross-examination. The aim is to damage your credibility and to weaken any evidence provided in the Affidavit against his/her client, or to obtain admissions from you that support their case.

Cross-examination can be daunting, but it need not be. Follow these tips to assist you in the witness box.

• Listen carefully to the specific question asked
• Make sure that you understand the question before you answer
• Answer honestly and directly
• Only answer what was asked, no more
• Resist giving explanations if you can answer with a “yes” or “no”
• Always remain calm and courteous to the legal representative and to the Judge, even if provoked.
• Once you lose your cool, you don’t think clearly. And that is exactly what the opposing side wants.

Very important: Your lawyer can object to a question asked in cross-examination if he/she thinks the question is unfair or misleading. Don’t say anything until the Judge has dealt with the objection. There is a good reason why your lawyer doesn’t want the question to be answered.

3. Re-examination

After cross-examination is concluded, your legal representative has an opportunity to re-examine you. This is not a second opportunity to present evidence, you may only be asked questions to clarify or explain answers given during cross-examination.

Do you need a lawyer to litigate?

Litigation is complex. Effective litigation is a skill that develops with knowledge and experience over time. You need to know the law and the procedures to follow and you need a strategy. If you are considering litigation you should seek advice from a lawyer who has experience in litigating family law matters.