01 May Process Options
One of the hardest and most important decisions that separating couples need to make is how they are going to conduct themselves and which process they will choose to resolve any issues in dispute.
The simplest, cheapest and most respectful approach would be for the parties to deal with the matter themselves and perhaps only revert to lawyers in the event that they wish to have some or all of their agreements recorded in a binding legal document. Unfortunately, only about 5% of matters are settled in this way. This is not because 95% of people are not well-intentioned and would not like to sort things out in such a straightforward manner, but often there is so much hurt or emotion for one or both parties around the time of separation, that they are not able to have the conversations they need to have without some assistance.
The worst way of going about resolving a dispute is going to Court. Approximately 5% of matters need to go to Court and it is appropriate when no other dispute resolution process would be viable, for parties to have the option of taking their matter to Court. For the vast majority of cases however, it is unnecessary and yet sadly far too many matters proceed in the Court system without properly understanding that there may have been better alternatives that should have been considered first.
When parties take their matter to Court, they are buying into a process that is very expensive, takes a long time to complete, is very stressful for them and their family, can result in significant additional damage to parenting relationships and has no certainty about it. Lawyers can never guarantee an outcome in Court as the same facts run before different judges are likely to have different outcomes. Judges are human beings and therefore do not have divine wisdom in relation to knowing for certain what is true and what is not.
The Court also has wide discretion and there are many factors that the Court takes into consideration in determining family law matters and different judges will attach different weight to those many factors. Different judges may make different findings of facts when they hear the evidence. The result is that although an experienced family lawyer can give some prediction of what a Court might do, there is still a high risk for the parties that they may spend a lot of money and not achieve the outcome that they hoped for. This is particularly so when the parties consider how much it costs to go to Court. It is not uncommon for the amount of money in dispute to be eaten up by the cost of fighting about it in Court.
For these reasons Court should always only be used as a last resort or when every other avenue is either totally inappropriate or not available to the parties.
The second most expensive way of about going resolving your matter is using lawyers to do the negotiation for you. Typically, lawyer negotiation takes place by letters passing backwards and forward between the lawyers. Every letter the lawyer writes and every letter they receive and read, costs the parties money. This process also takes a long period of time and sometimes the nature of the communication that is received, particularly if the lawyer on the other side is very litigious, hostile or inexperienced, can be unproductive and unhelpful.
The other difficulty with lawyer negotiation and with Court is that certainly with Court and most commonly with lawyer negotiation, the solutions that are posed can only be within the parameters of solutions available under the Family Law Act. This means that there may have been other preferable solutions that would have resolved a matter to the benefit of the parties, but cannot be considered. Furthermore, there may be issues that are important to the parties that will not be capable of being aired or resolved in these negotiations because they are outside of the parameters of the issues that can be dealt with under the jurisdiction of the Court.
For those parties who are not able to resolve matters directly over the kitchen table or who do not want to engage a lawyer to negotiate for them or go to Court, the alternatives are either:
- Mediation; or
- Collaborative Practice.
For more information on Mediation or Collaborative Practice contact Belperio Clark on 8212 1322 or go to the tabs under those headings on this website www.bc-lawyers.com.au.
