Litigation

The Family Court of Australia is the final resource to help you reach settlement on financial and children’s issues. The Family Court can hear both financial settlements and children’s issues. However, it will almost certainly ask you to attempt mediation before allowing you to litigate unless there are exceptional circumstances such as family violence.

In reaching decisions about children, the Family Court is bound to consider the welfare of the child as the paramount concern. In doing this, it assumes — but also tests — that the best interest of the child is for the parents to have equal shared parental responsibilities. It also examines whether a parent should have equal time, or substantial and significant time with the children. It uses a number of criteria to determine this before finally issuing parenting orders. Issues concerning children can be brought before the court anytime.

On the other hand, property disputes can only be brought before the court after separation until 12 months after the divorce is issued. The court will attempt to divide the marriage property of the parties — which can also include superannuation — so each receives a portion that the court believes is fair and reasonable in the circumstances. The court can also order spousal maintenance, and can even do so before the final determination if the situation warrants.

Costs aren’t normally awarded, but the court may do so when it deems the action brought was frivolous or vexatious.

Our expertise

All of our solicitors are admitted to practice in the Family Court of Australia, Federal Magistrates Court of Australia and Supreme Court of Queensland. Our professional staff regularly conduct family and defacto law matters in these jurisdictions and are experienced litigators.

James Noble is an accredited family law specialist with over thirty years experience in family law litigation.

We also brief experienced Barristers who regularly appear before the Family Court of Australia, Federal Magistrates Court of Australia and the Social Security Appeals Tribunal (Child Support). We also conduct Appeal matters before the Full Court of the Family Court of Australia.

The advantages

The advantage of litigation is that it offers certainty. The family court is also conscious of the expense involved and the emotional turmoil that is involved in resolving issues after the breakdown of a relationship, and tries to offer quicker resolution through conciliation options where possible. The success of these, however, often depends on the goodwill of your ex-spouse or ex-partner.