FAMILY LAW BLOG - “Don’t want to go to Court”

We manage a community help line here at Bennett Carroll taking calls from distressed people from all walks of life. Over the last Eight (8) years I’ve been dealing with those calls I’ve noted that nearly everyone looking for advice ”Doesn’t want to go to Court” – most people want a negotiated and non confrontational outcome. It is without doubt the single most often made statement I get.

The fact that so many people say it indicates to me that there is a widely held fear of going to court perhaps based in an incorrect notion of what that statement means. BUT I’d like to make a point first :

• We do not advocate going to court and neither do most of the practitioners working regularly in Family Law unless that is the only remaining avenue of resolution open to a client. I (Warren Tegg) have been Practicing in Family Law for over 30 years. In all that time a single Family Law statistic has remained pretty constant. That is that over 95% (now 97%) of all Family law matters filed in the Court settle out of Court. Just to fill that out a little it is significant that even if a separating couple has there deal agreed they’ll have to file an application at Court to get the deal sealed and that application is one of the 55,000 odd filed annually around Australia.

What that demonstrates though is that less than 3% of cases actually “Go to Court” that is wind up in a Court room for a Trial. The greater proportion, that is, 97% do in fact settle without the need for that Court room conflict.

This is great news! The reality is that most cases settle and the Lawyers working consistently in this field are practiced at negotiating deals and helping their client’s avoid “Going to court”.

The Court however is sometimes a useful and effective tool in getting to that settlement. What the above statistics tell us is that even though an Application is filed in the Court that does not mean you are “going to Court” in the widely accepted sense.

Each Family is different in their own way and so each Case is somewhat different.

We are negotiators and our initial goal in any matter is to understand your Family dynamic so that we can chart a course to a settlement that suits you.

Check out our information on Fixed fee consulting on your road to understanding how you can resolve your current dispute.

Warren Tegg

Domestic and Child Violence Epidemic

DOMESTIC AND CHILD VIOLENCE EPIDEMIC

The media is currently filled with horrific stories of violence involving children and families.

There is a whole web of interacting responsibilities and authorities designed to intervene and short circuit these situations. Often they fail, but it does not mean that they are not there.

Police

Police will attend any incident of domestic violence to which they are alerted. It can be a neighbour, a passerby or an occupant. Police will attend as soon as resources permit. The first decision that police officers make when arriving at the scene is "who is the threat?" This is an attempt to diffuse the situation and create a circuit breaker. It is not always the first step to Domestic Violence Orders.

Police will have to make a value judgment as to what intervention, if any, is appropriate. There are times when intervening to remove a party will provoke a violent response from the other against police.

If an intervention decision is made, police have the authority to remove any person from a domestic violence scene, and incarcerate them before they can be brought before a Magistrate.

This does not always improve the situation, but is an instantaneous decision that police have to make when arriving at a scene.

When next a Court can deal with the matter, if police intend to proceed with Domestic Violence Orders, an interim order may be made. It is quite common for a party who was not removed from the scene to be the subject of a cross-application for a Domestic Violence Restraining Order.

The matter will then go through the Court process.

CONTESTING WILLS

There are three ways to contest a Will:-

1.             The Will was not executed properly.  Recently, Parliament has lowered the bar on what constitutes an enforceable Will.  Previously, there was a very rigid process and very strict requirements for how a Will was to appear, who could sign it, who could witness it, and how these signatures were to be attached.  Now, this is somewhat more relaxed and a document merely needs to show “testamentary intention”, that is, the document needs to show that the person who signed it (the testator) intended it to be a set of rules for distributing assets upon death.  If this is the case, the Court will often overlook non-compliance with format and execution.  Recently, the Queensland Supreme Court approved a suicide note as a Will, despite that fact that it had no witness signatures, and was not in any recognised format.  The Court ruled that the suicide note showed testamentary intention, and could be considered a set of directions for distributing assets.

2.             Lack of testamentary capacity or, simply, the testator did not have enough “marbles” to understand what he or she was doing when the document was signed.  These days, with strong medication and medical treatment prolonging the life (but not necessarily the quality of life) for people, Wills are being signed in circumstances where the mental capacity of the testator can be challenged.  Illness, medication and other variables, can all rob someone of the capacity to make rational decisions.  The question of whether this impairment is sufficient to prevent someone from understanding the nature and effect of a Will is a difficult and medically based question.  Expert evidence from the treating doctor, or other experts, will be required to show that it is likely that the person who signed the Will did not understand its nature and effect.

3.              Application for a provision (previously called testator’s family maintenance).  This, far more complex process will be covered in another blog.