(1800) 217 217INCORPORATING JAMES NOBLE FAMILY LAW

Family Law 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 determine 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 at anytime after a separation.

Property disputes can only be brought before the court for family law litigation after separation and before 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. The court can also order spousal maintenance, and can even do so before the final determination of property issues.

Payment of the other party’s legal costs is not normally awarded, but the court may do so when it deems the action brought was frivolous or vexatious.

Our expertise in Family Law Litigation

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.

Ian Field 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 Circuit 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.

To learn more about how your matter relates to family law litigation, please contact one of our Accredited Family Law Specialists on 1800 217 217 or visit info@jamesnoblefamilylaw.com.au.

The Court Stages of Litigation

The-Litigation-Process

Introduction to Family Law Litigation

Family Law exists to deal with legal issues resulting from separation. Our principal Ian Field is an accredited Family Law Specialist. We can provide you with advice that will empower you with knowledge of your legal rights and obligations following the end of your relationship.  Our advice to you can also assist you in negotiating a settlement with your partner because you will have better knowledge of how to effectively deal with your partner’s needs and requests.

Family Court of Australia

The Family Court of Australia is the final resource available to you to reach settlements on issues in dispute. The Family Court is conscious of the expense involved in resolving issues and the emotional turmoil that is normally associated with the breakdown of a relationship. The Family Court will make orders on matters requiring urgent attention.

Financial issues relating to marriages can be brought before the Family Court:

  •       at any time after separation;  and
  •       up to 12 months (1 year) after the granting of the divorce.

Financial issues relating to de facto relationships can be brought before the Family Court within a period of 24 months (2 years) after a separation of the relationship.

Parties who wish to make an application in relation to children’s issues (other than an Application for Consent Orders) must first participate in family dispute resolution in an attempt to resolve the care arrangements in relation to children.  A party must file a mediation/counselling certificate together with their application for children’s orders unless one of the following circumstances apply:

  •       the matter is urgent;
  •       one or both parties are unable to participate in family dispute resolution;
  •       there has been or is a risk of family violence by one party of the parties;  and
  •       there is a risk of abuse of a child/children by one of the parties.

The Federal Circuit Court

The Federal Circuit Court offers a Court system parallel to the Family Court. This Court also has other federal jurisdiction, including bankruptcy.  It combines its federal jurisdiction with family law matters.

The purpose of the Federal Circuit Court is to provide a faster, less expensive and less complex option for litigants and also to ease the workload of the Family Court. This allows the Family Court to focus on complicated matters that require the attention of a superior Court Judge.

The use of conciliation counselling and mediation will be strongly encouraged in appropriate cases, using both community-based counselling and mediation and the Family Court services.

The Federal Circuit Court shares its jurisdiction with the Family Court and the Federal Court.  The Federal Circuit Court legislation includes provisions that enable Federal Circuit to develop procedures that are simple and as efficient as possible, including power to make rules to set time limits for witnesses and to limit the length of both written and oral submissions.

Costs of Family Law Litigation Proceedings in the Family Court or the Federal Circuit Court

Normally, each party pays their own costs associated with the Court proceedings.  In some instances, a party may seek a ‘Costs Order’ against the other party in their application brought before the Court.   The Courts do have discretion to award costs against the other party in certain circumstances.

Costs may be awarded where the proceedings that have been instituted are frivolous or for some other reason the party was unreasonable in opposing or bringing applications.  Costs are awarded on the actual work relating to the Court proceedings and are based on the Family Court scale,  at the discretion of the Court or an indemnity basis.

Fact:   An overwhelming majority of cases are resolved by agreement between parties. Historically, only 4% of matters in the Family Court have required a judicial decision via family law litigation.