Family Law Blog

I have separated - do I need to go to court?

Posted by Malcolm Gittoes-Caesar on 21 Dec 2018

In a May 2018 Sydney Morning Herald article titled Parenting, property and the misery of family law, author Jenna Price commented that as it relates to family law:

"The court system meant to deal with your devastating problems is in chaos - better to keep well away from it and keep your money for setting up your separate household."

As a solicitor whose practice is entirely focused on family law, I would love to disagree with Ms Price, and extol the virtues of the Family Court of Australia or the Federal Circuit Court of Australia as a simple and inexpensive way of resolving your family law problems - but I cannot.  

Unfortunately, what Ms Price has indicated in this article is very much in line with my experience.

This is not in any way a criticism of the courts, which do the best that they can with regard to dealing with the plethora of matters that come before them.  The issue, quite frankly, stems from a severe lack of Judges combined with an extremely high, and ever-growing number of family law matters.  The Judges that I appear in front of work extraordinarily hard, and endeavour to both streamline and finalise matters as best they can.  However, there are only so many hours in the day, and so many things that they can do.

Regrettably, sometimes court is inevitable.  Parties can become so entrenched in their positions, or their views of what has occurred throughout the relationship may be so diametrically opposed, that it is impossible for them to meet in the middle.  However, in most matters that I deal with, there are ways in which compromises can be reached.  

When emotionally invested in a matter, it can often be very difficult to take a step back and make a financially sensible decision with respect to property matters.  For parents, nothing in life is more cherished than your children - and to make any sort of compromise with respect to their safety, for example, is simply not possible.  However, I often say to clients that if a result is achieved whereby one party is not receiving as much time with the children as they would like, and the other party is giving the children to their ex-partner more than they would like to, it is quite likely that the right result has been achieved.

It is almost impossible for a person going through either a family law matter or a separation to both leave their emotions at the door and take an objective and analytical approach to their separation - including what should transpire as a consequence.  It is for this reason that decisions surrounding which solicitor to work with are so important.

As attending court is sometimes necessary, selecting a solicitor who is well versed in appearing in court is vital.  With this in mind, and as highlighted in Ms Price's article, court should be avoided at all costs.  A solicitor who is able to take a pragmatic and commercially sound approach to your matter, assist you with the practicalities of the situation and help you to see through the array of emotions that run hand in hand with family law matters is likely to give you the best chance of coming out of court with the best possible result.

If you are currently going through a separation and you are concerned about how the matter can be resolved, or whether court is inevitable within your particular circumstances, please do not hesitate to get in touch with one of Coleman Greig's Accredited Specialists in Family Law: