What To Expect When You Go To The Family Court

So you’ve made some bad decisions in your life. Now’s the time to start making some good ones. This can be hard when you have no point of reference. If you want to change your life for the better, going to the Family Court is a bad idea. Here’s why.

There are no guarantees

No matter what your lawyer tells you, there are never any guarantees when you go to court.

In every single case where a court has had to make a decision- one lawyer got it right, one lawyer got it wrong. Having a lawyer represent you (or even tell you that you’ve got a “winning” or “good” case) is no guarantee of anything.

Lawyers are willing to take their chances because win, lose or settle, they get paid either way.

Also, lawyers don’t have to live with the collateral consequences of litigation- you do. And so do your children.

There are no winners in the Family Court

Decisions made by the Family Court are rarely one sided and seldom do you see clear cut “winners”. Often the court makes decisions that fall somewhere in between what each party is seeking.

For this reason costs orders are no often awarded in the Family Court and parties will most often pay their own legal costs.

Most Family Court matters settle before a trial

When you file an application in the Family Court it triggers a very long process. More often than not, sometime during this process the parties will reach an agreement and the court proceedings will be brought to an end without the need for a judge to make a decision on the issues.

Given that the court process is most often brought to an end by an agreement between the parties, could the parties have reached an agreement sooner, say at mediation? Did the financial and emotional cost of going to court justify any additional benefit they may have obtained by commencing court proceedings?

You will lose years of your life in limbo

Going through the Family Court process and getting to a trial (where a judge will hear the evidence and make a decision for you) can take a long time. A very long time.

The 2017 Annual Review of the Family Court of WA indicated that the median wait to trial was 97 weeks.

Once the day of the trial comes, the decision won’t happen on that day either. The decision maker needs time to consider and weigh the evidence. Coming to and writing a decision can take months again. You can read a media article about lengthy waiting times for decisions to be delivered in the Family Court of Western Australia HERE.

After you get a decision, it then needs to be implemented which, yet again, will probably take months, especially if property is being sold. Although not common, further delays can be caused by appeals.

So the court process can take years. You’ve not only lost years of your life, you’ve lost years of healing, and better (and more constructive) ways you could have spent your time and money.

You will lose control of your life & future

When you need to invite third parties, such as lawyers and judges, to help you resolve a legal dispute, be prepared to hand over a lot of control.

Your lawyer will tell you what you can and can’t do and say. They’ll start doing “things” and you have to trust that these things are required and of value to you.

And while you may have control over the lawyer you choose to bring into the dispute, you certainly have no control over the lawyer your ex-partner decides to engage. Lawyers, their knowledge, experience and attitude, will certainly and significantly affect the course your separation takes.

The court will set a timetable and make procedural and other orders. More often than not, there will be complications and thing’s won’t go to plan. There will be delays and adjournments. You now have to jump through the hoops the court sets and do as you’re told, as well as pay for your lawyer to attend to all the things the court has ordered you to do.

Once the snowball is set in motion, it’s very difficult to disentangle yourself. And even if you want to, it will be very difficult to do that if your ex (or their lawyer) have a different attitude.

Litigation is expensive and will probably financially devastate you

TheLegal Profession (Family Court of Western Australia) Costs Determinationthat came into effect in 2019 sets out that legal practitioners in WA can charge a maximum of $495 (including GST) per hour for advice and services relating to family law matters. That’s if you don’t have a costs agreement. If you do, expect to be paying more.

Unfortunately, lawyers charge for “time spent”, not “value that is given for that time spent”.

It will be almost impossible for your lawyer, in the early stages of litigation, to give you any idea about total or final legal costs. There are too many variables to predict that with reasonable certainty.

I’ve never met anyone (rich, middle class or poor) who liked to pay money to get what they perceived was theirs. So to be clear, when you embark on the Family Court process what you are in fact doing is akin to signing a blank cheque and giving it to your lawyer.

Litigation is an undignified, humiliating and disempowering process

Your lawyer will disassemble your life story and tell you what’s relevant and what’s not. A lot of what you think is relevant, in fact, is not and you don’t get to raise or address any of those issues.

Your story (or, at least, the relevant bits depending on what you are seeking and at what time) will be recounted in a courtroom. There may be only a few people in the courtroom or it could be full.

People who you’ve never met or talked to in your life (such as the magistrate and your ex-partner’s lawyer) will be talking about you and your children, often in your presence and referring to you in third person, and making decisions that affect your future.

If you go to court, you may need to ask family, friends & acquaintances (such as teachers, doctors, other health care providers, accountants) to swear an affidavit in support of your application. Anyone who swears an affidavit must be willing to come to court, give oral evidence and be cross-examined on that evidence.

Litigation will increase the animosity and conflict between you and your ex-partner

People end up in the Family Court because they can’t (or won’t) reach an agreement. It’s fair to say that the initiation of litigation marks the escalation of conflict. As if the relationship with your ex-partner wasn’t bad enough be prepared for things to get worse.

Your lawyer will ask you a lot of questions (after all, and as someone else once wrote, you pay your lawyer to have a “dirty, suspicious mind”). You’ll begin to question everything you think you know.

Be prepared to see all your ex-partner’s gripes committed to paper, and to throw mud yourself.

While the pre-action procedures talk about having regard to how the parties and their lawyers conduct dispute resolution measures and the impact of their conduct on the children, there are no rules about how litigation is conducted and the resulting effect on children.

What litigation does is throw fuel onto an already out of control fire.

Conflict is largely fuelled by trust & communication issues. Litigation will not address or resolve these issues but will instead intensify them

At the heart of any relationship breakdown is a breakdown in trust and communication. During the court process, your traditional family lawyer will “help” you to resolve your separation issues, but you’ll be left with no ongoing tools and strategies to help you independently deal with these underlying issues. These issues will only be intensified and the gap between you and your ex-partner will grow bigger. And yet, after its all over, you’ll still have to somehow work together as parents.

Family Court litigation will adversely affect your ability to effectively parent your children

Family Court litigation is an adversarial process. In other words, you and your ex-partner are pitted as enemies. You’ve placed your children in a situation where the two people they love and trust the most are waging war against each other.

When you consider that (1) litigation will increase the animosity and conflict between you and your ex-partner, and (2) your trust and communication issues will remain unresolved, how do you think you’ll work together as parents in the future?

It’s little wonder that children learn to play parents against each other and sometimes alternate between households. Realistically, it’s very difficult to maintain a united and uniform approach to discipline and rules when you consider how the Family Court process affects your state of mind and relationship with your ex-partner.

Litigation will increase the stress and trauma of an already traumatic life-event

It is widely accepted that separation and divorce rank among life’s most traumatic experiences, for both adults and children. For adults, there are increased rates of depression, substance abuse, suicidal behaviours and anxiety.

An extensive study, published in 2014, showed that it took up to two years for a divorcing adult’s psychological processes to normalise. This is a longer recovery period that observed for bereavement!

When you add into the mix the factors mentioned previously relating to what you can expect during Family Court proceedings (uncertainty, feelings of helplessness, exorbitant legal fees, unreasonable delays, increased levels of conflict) it’s little wonder that there has been found to be a causal relationship between separation and suicide. Men, in particular, are at risk. The incidence of suicide amongst divorced men is 3 times that of married men. Health experts have labelled divorce a “public health issue”.

Inter-parental conflict will adversely affect her child’s mental and physical health

As mentioned previously, litigation is an adversarial process and it marks the escalation of conflict. There have been numerous studies indicating that it’s not separation or divorce that adversely impacts on children- its parental conflict. Most interestingly, new studies indicate that inter-parental conflict is the marker irrespective of whether the adults are either married or separated.

There has been much research recently into the outcomes for children exposed to destructive relationships/conflict. The findings of research carried out by several independent bodies are as follows:

• a common outcome of destructive conflict between parents is the development of emotional or behavioural difficulties for children;
• children’s own social relationships can also be affected, with children prone to developing poor interpersonal skills. As a result, children and young people in high conflict homes may have difficulties getting on with others, such as parents, siblings, teachers, peers, and, in the longer term, romantic partners;
• children are also at risk of a range of health difficulties, including: digestive problems, fatigue, reduced physical growth, headaches and abdominal pains;
• they may also suffer with problems sleeping. Difficulties can extend into school, with children less able to settle, more likely to have trouble getting on with peers, and less likely to achieve academically because of the impact of conflict between parents on children’s cognitive abilities and attention.

You and your children will suffer the negative consequences of litigation long after its over 

The Australian Institute of Family Studies has conducted numerous studies on the long-term effects of divorce:

• a study published in mid 2018 revealed (not surprisingly) divorced people aged between 55 and 74 years had less household disposable income and fewer assets than married couples the same age; and
• a study in 2010 study indicated that divorce had a negative impact on well-being (that is, on overall perceived social support, satisfaction with life, general health, vitality and mental health) for both older men and women.

Without doubt, the financial and emotional cost of Family Court litigation contributes to these effects.

Further, overseas studies have indicated that conflict within families has been found to pass from one generation to the next.

Where parties have spent months or years embroiled in Family Court litigation, they’ve certainly expended significant financial resources and denied themselves and/or their children the benefit of these resources in the future.

Some final thoughts

The take-home message here is that litigants involved in the Family Court process will have no peace of mind- for a very long time.

In many situations, court is unavoidable and even necessary. Where a party refuses to negotiate or to exchange necessary information, there’s little option than to seek the assistance of the Family Court.

Often, where one party has an unco-operative attitude, its largely due to their inability to manage their emotions and mindset- not altogether surprising or rare in the context of separation. Knowing your obligations (and not simply your “rights”) and the potential consequences of failing to co-operate is helpful in avoiding the disastrous consequences of Family Court litigation. Perhaps a more important element is getting your mind and emotions in order. There’s very little that family lawyers can do in this regard, except recognise this issue and a clients need for assistance. More often than not, however, its these emotions (and the words and attitude that result from these emotions) that traditional family lawyers hang their hat on to justify everything that follows.

A fundamental ethical obligation of a lawyer is to act in their clients best interests. But what a client wants is not always what they need (and not always what’s in their best interest). Family lawyers need to be highly sensitive of the fact that clients are making decisions at a time when they are most stressed, emotional and vulnerable, and that it’s not always the legal issues that need to be addressed first.