Should I Go To Court?

A common question that we receive in our practice is from clients asking “will I get justice if I go to court with my case?”. Unfortunately, our answer is generally not the one that many clients wish to hear but to be very specific, going to court is about receiving a decision or resolution in circumstances where you can’t reach that resolution directly with the other party. It is certainly not a place where you will feel that you have obtained any type of justice.

Justice in itself is a concept that is subjective and dependent on the person and the other party and in many cases the lawyers involved in the matter along with the Judge appointed to your case. It is therefore a very dangerous pathway when deciding to proceed to court to do so simply for the feeling of vindication or justice.

We generally talk to clients about the advantages and disadvantages when proceeding or the pros and cons of going to court.

Advantages

The overwhelming advantage for clients is to reach a resolution in circumstances there they can’t reach that resolution themselves.

Prior to proceeding to court, there is now a positive obligation on each of the parties to make a concerted effort to settle, to provide full disclosure whether it’s a parenting or property matter and to efficiently and cost effectively deal with the matter. If those criteria are not met, then the matter should not proceed to court.

There are a number of things that can be achieved by a court application and probably the most important for many families involved in these disputes is to obtain a binding and enforceable court order. In circumstances where agreements cant be reached for an out of court settlement and the other party is not co operating, then court is often the only alternative.

Rafton Family Lawyers offers our Rafton’s Arbitration and Mediation service and we fully recommend that people explore alternative options for settlement in the first instance before them embark on costly litigation. These are all things that are discussed prior to proceeding.

Disadvantages of Going to Court

There are many disadvantages of going to court but the main ones that need to be highlighted are:

  1. The Family Law Court currently has significant delays and the time period for resolution of a case is recommended to be 12 months from the date of filing. In our experience at the present time, the actual delays are in excess of 2 years in some circumstances.
  2. Going to court can be expensive and there is significant amount of legal work involved that each of the parties will need to pay for in the first instance. Parties need to examine their individual financial circumstances and make a commercial decision if court is an effective and cost effective way to deal with the matter.
  3. In some circumstances after orders are made, one or both parties may not agree with the orders and sometimes this could lead to further proceedings. In some cases this means the parties are returning to court after they feel the matter is finalised and this can create further issues.
  4. Court is an emotionally and psychologically taxing experience and often takes an enormous toll on parties mental health. It is not always about the outcome. Its sometimes about the process and all parties need to fully look at their own individual circumstances and be fully aware of what might occur once they start the litigation process.

Read our plain English handbooks

These fact sheets are designed to provide an overview of the relevant issues and systems so that you have a better understanding of the process.

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