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Children's matters - do we have to settle in court?

Children's Matters - do we have to settle in Court?

Friday 17th of December 2021
By: Ariadne Paras, Coote Family Lawyers

You looked after me superbly.

We get along and agree on what we want, so do we have to go to Court?

Put simply, no – but the need to rely on Court processes increases and is more likely where there are risk factors such as family violence, drug abuse or mental health issues.

Australia’s use of non-adversarial dispute resolution for children’s matters has been trending for decades because of its preservation of familial relationships, its timeliness and cost efficiency. This reality has been further recognised by the Federal Circuit and Family Court of Australia, which now has mandatory mediations and out of court resolution campaigns. Nonetheless, even though the Family Court’s overwhelming position may seem to promote litigation as a last resort for children’s matters, in circumstances of family violence and other risks, Court processes often remain more appropriate because of the protection it provides.

Out of court methods should be used where there is equality in bargaining power, and the preservation of parental relationships is valued by both parties

If your situation is cooperative, involves equality in bargaining power between parties and does not involve risk, out of court methods are often appropriate.

Compulsory family dispute resolution, for this reason, was made mandatory on 1 July 2007. The law requires parties to children’s matters to make a genuine effort to resolve their matters out of court. This expressly recognises the detriment litigation can have on children, and the importance of preserving parental relationships if possible.

Court processes are time consuming, which can negatively impact families who are likely to be undergoing emotional tolls. They can also be expensive, and money spent on legal fees could be better applied to other expenses.

Litigation should be used in cases of significant family risk, such as family violence, drug or mental health issues

If your situation does involve family violence, or other risk aspects, Court processes are often better placed to assist, at least at first instance. In some cases, such as family violence, mental health issues or urgent circumstances, parties will be excused from participating in the compulsory dispute resolution requirements.

So what should you do?

Out of Court dispute resolution is often the more cost-effective and timely method of dispute resolution and can support the post-separation parenting relationship. However, if your family situation involves family violence, or other risk factors, including if there is a significant imbalance in bargaining power, the Court process may be more appropriate to resolve your dispute.

If you need advice or have any questions please call our team of top family lawyers in Melbourne on9804 0035


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