If you are going through a divorce, you probably have lots of questions about the process. And one of the most common ones is: Do I have to go to court?
Do I have to go to court?
Like so many legal questions, the answer to this question is: ‘It depends’. Generally, most family law matters resolve without the need for litigation, and we encourage you to avoid commencing contested court proceedings, if possible. There are several ways in which your family law matter can be resolved without seeing the inside of a court room.
Australia’s family law recognises the financial and emotional cost of court proceedings, especially when matters about children are being disputed. In light of this, the Family Law Act provides that parties should make a ‘genuine effort’ to resolve their differences and the Family Law Rules provides for pre-action procedures that should be met – unless an exception applies – before beginning proceedings in court.
What does ‘genuine effort’ mean?
A ‘genuine effort’ means parties must take reasonable steps to resolve their dispute through alternative dispute resolution processes. This can include negotiation, mediation, conciliation, arbitration and collaborative law. These processes provide an alternate avenue to court and can occur with or without the assistance of a lawyer.
In parenting disputes, parents must participate in a Family Dispute Resolution Conference with an appropriately qualified mediator prior to commencing contested parenting proceedings in court. There are some exceptions to this general rule, including where one party has been a victim of violence at the hands of the other party, or where it is necessary to seek orders urgently from the Court.
What happens if you reach an agreement?
If the alternative dispute resolution process results in an agreement that both parties are happy with, the parties can formalise their agreement by filing a joint Application for Consent Orders. In completing the necessary form parties must set out information about their financial circumstances and the financial history of the relationship. If the Consent Orders are made they have the same force as if they had been made after going through the court process resulting in a final hearing.
How can we help?
If you are going through a divorce, our Family Law team can advise and guide you through the law and processes that apply. We are committed to assisting you to reach a resolution in your family law matter as swiftly and cost effectively as possible. Please don’t hesitate to contact us on 02 6285 8000 or by email.