Is Going to Court Necessary in Family Law?

Mornington family lawyers are often asked if it is always necessary to have family law matters settled in court.  Often when people are involved in custody or property division disagreements, the level of acrimony and stress is already high – and there is a profound wish to avoid making matters worse by litigating in court.

A results-oriented lawyer will advise their client that not every matter must go to court.   Although court is necessary in some instances, it is not the only way to resolve disputes, nor the best one.  If parties are on civil terms it is quite likely that an agreement can be achieved through discussion and the assistance of compassionate lawyers.

The most obvious drawback to court action is the cost of the process in legal fees.  There is also the time element; many courts are backlogged and a result will take much longer to achieve.  There is the added friction of a court hearing, with potential witnesses squaring off, and evidence being publicly introduced.  And, finally, the result is shrouded in uncertainty.

In short, a responsible family law lawyer in Mornington or neighbouring communities like Mount Martha, Safety Beach, Rosebud, Dromana, Portsea, Sorrento, Crib Point, Hastings, Tyabb, Flinders, Blairgowrie, Rye and Somerville will always try to resolve a property or custody dispute without going to trial.

Alternative Dispute Resolution 

The collective term for the ways of resolving separation and divorce issues without going to court is Alternative Dispute Resolution or ADR.  There are four main types of ADR, all of them viable ways to reduce legal costs and expedite outcomes.

The first is Arbitration.  This is the ADR process whereby a qualified arbitrator – agreed upon by both parties – decides how the property in question is to be split.  Other monetary matters can also be decided by Arbitration, including spousal or de facto partner maintenance.

Collaborative Law is an ADR process that keeps the control of the negotiations, costs and outcomes with the two parties in the process – rather than having a third party involved.  Obviously, this depends on a degree of civility and goodwill, and a willingness to negotiate in good faith and not go to court.  It’s an expedited, cost-effective and transparent process.  It’s also less intrusive and emotionally charged; this is especially of benefit if there are parenting matters being decided.

Early Neutral Evaluation and Mediation

Early Neutral Evaluation allows a mutually selected Evaluator to appraise a case using agreed-upon information.  The Evaluator then supplies a non-binding decision that the parties can either accept, or reject and proceed to court.  In practice, the Evaluator’s decisions are found to be very similar to ones eventually brought down by the Court, a further incentive to accept the early decision.

Mediation is common in family law matters.  An independent mediator hears both sides and attempts to bring the parties to a mutual agreement.

Mediating Child Custody

The Family Law Act (1975) in Australia has many provisions encouraging ex-partners to avoid going to court. In fact, the Act has mandates written into it encouraging couples to try to resolve their relationship. Mediation is available for those ending their relationship to sort out shared financial responsibilities, but there is another shared responsibility that is even more important – child custody. Coming to a shared arrangement between both parents with the input of an experienced family lawyer can save a lot of headaches and heart aches for the children. The Family Law Act (1975) focuses heavily on the benefit of the children and works on the presumption the parents will share custody of a child or children they have raised together. They will also both have a role in making important decisions affecting the child’s lifestyle, including schooling, health issues or education. Shared parental responsibility does not include shared time however. Parents will spend equal time with their child or children if it is agreed upon by both parties. Again, it is in the best interest of the children to have full access to both parents. Children are impressionable and hurtful things said about one parent or the other can have a lasting affect. Coming to an agreement in a calm and proactive manner will have a lasting positive impact on a child’s development. 

A trip to the Courts may be in the cards, but in every case experienced family law lawyers will encourage the parties to go with one of the four Alternate Dispute Resolution models.  Contact a local family lawyer in Mornington or surrounding areas today to get the assistance you need in your legal matter.