The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

To court or not?

To court or not?

If your relationship ends, does that mean you are going to end up in court?

Statistics say unlikely, but what happens in your individual matter depends on a few different factors.

When a relationship breaks down there are a few different issues that could see you end up in court:

  • arrangements for the children
  • property settlement
  • child support

Most people are able to reach an agreement without having to go to court, many people reach an agreement between themselves and their involvement with lawyers is only to have that agreement formalised so that it can't be changed later on.

Ideally, agreement would be reached with the assistance of a lawyer providing independent legal advice to assist you reaching the agreement and to make sure the agreement is fair and importantly that it covers all it should.

The family law process tries to ensure that people use court as a last resort after exhausting trying to reach agreement between themselves. For property matters this is through "preaction procedures" which requires the exchange of relevant documents and offers to try and encourage early settlement. For matters regarding children, this occurs by the court requiring, unless there is family violence or particular urgency, that the parties participate in Family Dispute Resolution and obtain a certificate that they have done so before they can commence court proceedings. In child support matters, there is a system for reviews to happen before you can consider going to court.

If these paths are followed, a matter will only end up in court if the parties have been unable to reach agreement despite significant efforts being put in by both them and their lawyers. This might occur because there is a legal issue that needs to be resolved, a difference on the value of assets or what is best for the children or if someone has unrealistic expectations.

Sometimes court proceedings may commence not because the parties are in hot dispute but rather to try and get things moving more quickly to finalisation. Commencing court proceedings can shorten the length of negotiations as each party is compelled to do certain things by certain dates. I often say that commencing proceedings is like hopping on a conveyor belt heading towards the judge making a final decision - you can jump off with an agreement but otherwise you are moving closer to the judge making the decision if you can't. This means that it may suit your particular situation to start court proceedings rather than continuing to hope that negotiations back and forth will soon reach agreement.

Sometimes though it is necessary to commence court proceedings urgently or sooner rather than later in order to preserve your position - that might for such things as to get urgent orders regarding children, to force the sale of a property or to

So, what are the key things to think about when thinking about court?

  • going to court may not always be the worst choice, sometimes it might be unavoidable, sometimes it is the best way to get your matter to resolve
  • an experienced family lawyer will work with you to explain the pros and cons of whether you are best to head to court or keep your matter out of court, helping you to make the decision that is right for you

Call 03 5445 1000 if you want to speak further to one of our family lawyers about this.