Surviving your divorce- Chapter 10: Domestic Violence

Domestic Violence has, in recent years, taken centre stage in the family law dynamic, and appears to be being magnified by an attempt to change the national psyche.

Any allegation of Domestic Violence will inevitably change the way a family law dispute is viewed and managed.

Allegations of Domestic Violence are taken extremely seriously, and alter the entire character of the way the Court process works, so far as that particular matter is concerned.

Two important rules emerge from this:-

(i)                Make an allegation of Domestic Violence only if it is warranted.

(ii)              Never, never, never admit to or concede an allegation of Domestic Violence if it is inappropriate to do so.

1.         MAKING AN ALLEGATION

It is common perception that there must be physical violence, where one party must strike another, in order for an allegation of Domestic Violence to be supported.  This is not so.  Any course of conduct or single act which has the effect of making a reasonable person fearful will be sufficient.  A complaint of Domestic Violence can be made through the Courts, and conducted by the parties or a law firm, or can be made by and conducted through the Police Service.  The Police have wide-ranging powers as a result of complaints or attendance at domestic disputes, to remove the party who seems a threat, to hold them in custody temporarily, and to conduct Domestic Violence applications, regardless of that party’s intentions.

Safety of the parties is paramount and the Police will act to remove any person who seems a threat.

You can also commence Domestic Violence proceedings, and it is reasonably easy to obtain an interim Order, given that Magistrates are far more likely to act with caution until all of the facts are known, and will make Orders (often mutual orders, that is, orders binding both parties), until there is an opportunity to have a hearing on the facts.

There is often pressure on parties to make mutual “tit for tat” cross applications alleging Domestic Violence.  This should only be done if the facts support such allegations.

Domestic Violence Hearings and Orders are a major distraction from obtaining final outcomes, and often stand in the way of getting matters resolved.  They can also be an enormous drain on funds, and if allegations are not later proven to be true, will seriously damage your prospects in related Court actions.

Simple things like the hand over of children to spend time with the other parent, become fraught with logistical problems and opportunities for parties to make allegations which ultimately simply waste money and time. 

Parties are often tempted to use Domestic Violence applications and interim Orders as a tool.  This can seriously backfire.  Interim Orders interfere with contact handover and unnecessarily complicate matters, if they are not necessary to regulate the contact of the parties.  They should be resisted as a tactic to “get at” your Ex. It simply doesn’t work.  It’s a distraction, time and costs waster and can blow up in your face if the facts do not support you.

The parties are often under pressure to make what are called Consent Orders without admission.

This is, in effect, where the respondent (or both parties if there are cross applications) denies the allegation of Domestic Violence, but agrees to be bound by an Order to keep away from and have no contact with the Applicant.

You should resist the temptation to “nod” to such an Order if the allegations against you are untrue.  These Consent Orders, even without admission, will cause major problems with the conduct of the main Family Court proceedings, and may prejudice or at the very least alter the course of contact with the parties and their children, and affect final resolution of the matter.

Conversely, allegations that are later proven to be unfounded can be seriously damaging to your credibility. 

The message is clear:-

(i)                only ever make an allegation if it is supported by fact;

(ii)              do not consent to Orders, even without admission, unless it is appropriate to do so.

2.         THE COURT PROCESS

Domestic Violence hearings have 3 stages:-

(i)                Initial Order;

(ii)              Interim Orders and Interim hearings;

(iii)             Final Orders.*

3.         INITIAL PERIOD

Domestic violence orders can be initiated by one of other of the parties.  The process involves filing an application in the appropriate court and your adviser can draft the material for you. Often though the process starts with an event of violence or a domestic incident.

Police Officers have the power to obtain initial orders binding the parties until a Court can hear the matter.

This is usually overnight, or for very short periods of time.  Police attending a home will initially try to make a value judgment about removing someone from the site to prevent further possible violence.  If that decision is made then that person will be removed and police will seek to obtain an interim order preventing contact between the parties until a Magistrate can look at the facts.

The parties will then turn up to a “first return date”. This is the first time that anyone actually looks at the facts.  Prior to this the only focus is on taking precautions to try to ensure that any violence stops.  Police will make that decision out of an abundance of caution and will be concerned about the consequences of not acting.  As a result it is very common for someone to be removed from the scene.

This does not mean that violence is proven. 

It simply provides a circuit breaker for the situation.

4.         INTERIM ORDERS AND INTERIM HEARINGS

Regardless of whether the matter is police initiated or by application filed by a party, the matter will then go before a Magistrate who will consider making an interim Order.

As I have previously mentioned, these Orders are made on very conservative grounds, and it is more likely than not, that an interim Order will be made.

Everyone appears at the local

Magistrates Court

on the morning of the first return date.  There are several possibilities for what happens on that date and it depends upon the attitude of the parties and to some extent the police (and certainly the Magistrate), as to what orders if any are ultimately made.

There are three possibilities:

a)    there are no orders made and the matter is dismissed (quite rare);

b)    there are interim orders made and a final hearing date is set;

c)    there are final orders made by consent.

It is possible though exceedingly rare that no orders are made at this first return date and the parties return to a situation as though police never attended or intervened.  Even if you or your partner withdraw the complaint, the police have the discretion to continue.  They will do so if they believe the complainant is being intimidated or overborne into making a decision to withdraw.

If the matter is not dismissed at this first date, then some orders will be made.

Whatever happens unfortunately there will not be a full examination of the relationship and the facts behind any incident on this first return date.

What will happen is that the parties representatives (or the police prosecutor if the parties are unrepresented), will have a look at the facts as alleged.

There will then be a discussion about whether some orders can be made by consent.

They can take many forms and have lots of variations.  They may in fact contain mutual obligations for the parties to remain away from each other.

If some kind of common ground on order can be found, then consent orders can be made.  These can be interim (until a full hearing can be held), or final.

Interim consent orders are the most common but if there is complete agreement on the way forward then final orders can be made by consent.  DO NOT CONSENT TO FINAL ORDERS WITHOUT UNDERSTANDING THE FULL CONSEQUENCES OF DOING SO.  Final orders have far reaching consequences.  They create obligations and problems which will stand for years.  They are difficult to undo or alter without the consent of your Ex (which may not be given).  Even if the orders are made “Without Admission”, that is, without conceding that you’ve done anything wrong, they will affect not just the way contact with any children is conducted, it may affect how the rest of the finalization of the relationship is managed.

As I previously stated, there has been a trend in years gone by to encourage the parties to make “mutual orders without admission”.  This means, so it’s claimed, that the parties effectively agree to stay away from each other without admitting any of the allegations made by the other.  This was a relatively easy way to dispose of the allegations on the first return date, either in an interim sense or in final orders, without going through the whole costly antagonistic process.  This was often sold to the parties as saving costs and “getting on with the important stuff”.  This is the wrong way to look at what is a very serious matter.

Domestic violence orders can have a major affect on the shape duration and consequences of he entire process of unraveling a relationship.

Think carefully about the instructions you give your adviser.  Do not feel rushed and if you cannot make a decision you’re happy with, keep talking to your adviser and those close to you until you can.  Remember, your adviser is not there to demand that you do various things.  Your adviser is there to explain the law and circum stances to you, and make recommendations to you about what you CAN do.  You adviser is definitely not there to tell you what to do or put problems in your way.

Your adviser is required, after explaining the situation to you, to take and implement your instructions unless they are illegal or unethical.  If your adviser is unprepared to do that then he/she should withdraw and allow you to get another adviser.

Unfortunately some, even senior lawyers, do not know or forget this.

If there is not enough common ground for consent orders then, there may need to be, or the parties may require, an interim hearing.  This is, necessarily, less than a full-on examination of all the facts.  There will be argument from both parties some submissions regarding what Orders, if any, would be appropriate.

It is acknowledged that the parties will not have had any time to gather evidence, collect witnesses and prepare for a hearing.  For this reason final orders are not made on that day.   You may feel a certain amount of frustration in not being able to “have your say”.  Ultimately it is best for both parties if the facts to emerge once all the information is to hand and a proper examination of everything can be made.  This takes a little time.

At an interim hearing, the decision to be made is, “what step will best put the matter into a holding pattern until a full review can be done”.  For this reason interim orders against one or both parties are very common.

It is an unfortunate side effect of this approach that many people have interim orders made against them in circumstances that are very superficial.  People are subject to the stigma of an interim domestic violence order based on only a cursory examination of the facts.  This is traumatizing and is even worse when children are involved.  Trying to explain this process to a small child is extremely difficult.  Contact (now called “Spending Time”) with children almost universally means contact with the other parent, which, of course, can’t be done under interim or final orders.  Your adviser will have strategies and processes to go in the order to make this work.

The thought of “engineering” an interim order might be tempting as a way of scoring points against an Ex but it immeasurably complicates the process and will make the prospects of getting a resolution plummet.  It is extremely dangerous to play with this process and there are severe penalties for being caught doing so.  You should only make a domestic violence complaint if there are grounds to do so.

One of the worst features of interim orders is the impression it gives some parties.  All sorts of feelings of revenge, alienation, superiority, and other impressions which act to move the parties further apart, spring from the (often wrong) impression of the rights granted at these interim hearings, to say nothing of the additional costs incurred.

Interim orders will, of necessity mean one party leaving the home, usually at no notice.  This can be a good thing in relationships of genuine fear and danger.  It can be the first real step in a realization that a relationship isn’t working.  It can also harden attitudes.

None of this should enter into your thinking of you are in danger or fear.

If you need to make a call to end violence an intimidation, do it.

If those Orders are not final and by consent, then those Orders will stand but the matter will be set down for a full hearing, and directions will be made by the Court as to dates for preparation and service of material to support or refute the allegations.

5.         FINAL ORDERS

At that final hearing, both parties will by then have filed affidavits and setting out their versions of the facts, but both parties will be required to be cross-examined on that material, and answer questions from their opponent’s legal adviser designed to disprove the allegations.

The Magistrate will then decide which version of the facts he or she accepts, and make orders accordingly.  The proof of the allegations is of the civil standard, that is, on the balance of probabilities.  This means that the Magistrate will only have to decide whether it was more likely than not that the allegations are true.  There is no requirement to prove the allegations beyond a reasonable doubt. 

It is a particular problem for the parties and the Court that most often, these allegations are of conduct between the parties in private, with no other witnesses, and are often alleged to have stretched over a period of time, making dates, times and places difficult to pin-point (and refute).

There is no requirement for corroborating evidence, (that is, some kind of independent evidence, for example, medical evidence, evidence of complaint at the time, or physical evidence), in order for the allegations to be accepted.  This introduces an element of jeopardy and almost chance into the Domestic Violence arena, which is unwelcome by the parties or the Court.  Nonetheless, it is present and has to be dealt with and considered by the parties.

6.            APPEAL

There are only 4 grounds of appeal:-

(i)                That the Court has allowed evidence that should have been excluded.

(ii)              The Court has excluded evidence that should have been allowed.

(iii)             That the Court misunderstood the law.

(iv)             That the Magistrate so misunderstood the facts as stated, that no reasonable person could have come to the conclusion that he or she did.

As you can see these appeal grounds are quite narrow.

Orders made will be expressed to exist for a particular period of time, and may be very, very specific, covering minimum distances of approach, specific areas or places which are not to be entered, and particular conduct which is not permitted.

On expiry of the orders, they can be extended depending upon the conduct of the parties in the interim.

7.         SIDE EFFECTS

Allegations of Domestic Violence can alter the way your family law dispute is conducted.  Matters affecting the children will be delayed, complicated and made far more expensive for all parties, by unfounded allegations.

Likewise, consenting to Orders relating to Domestic Violence, will slow down, complicate and make more expensive, all of the other dealings related to the dispute.  Orders relating to contact with, maintenance of, and the residence of children will all have to be looked at and made more complicated by allegations made.

If this is required for the safety of the parties or the children then, so be it, and this is quite appropriate.

Using Domestic Violence as a weapon though, is often counter-productive and will harden the attitudes of all of the players to a resolution.  This will increase the chances of the matter becoming one of the 7% or so of disputes that goes to the delay and expense of a full Trial of all the property and children issues.

If you need to make an allegation for Domestic Violence in order to be safe and to make suitable arrangements for children, then do so, and stick to those allegations without watering down or embellishing them.  If not, resist the temptation to make unfounded allegations.

It is essential that, if your relationship has been marked by domestic violence, you take advice on structuring your termination of it and that you have a domestic violence safety plan before you make the break.  You should seek advice on how to do this. 

Surviving your Divorce- Chapter 9: So you have started the process

INTRODUCTION

This Chapter is designed to explain to you all of the building blocks of this process so that you have a better understanding of what is happening along the way.  Use these building blocks as sign posts to work out what your next move should be, and how far along the process we are. 

1.         THE INITIAL DEMAND

This is the opening shot in the negotiation’s formal stages.  The demand will almost always take the form of a letter from your adviser.  This demand needs to suit the agenda that you are running and refocus towards getting the outcome that you want. 

This might seem like an obvious thing but many times these demands run to a formula, and are not properly considered. 

The demand should be tailored to get the response that you want from your opponent.  If that means a different approach, then so be it. 

Your demand might be:-

(i)            Short, simple and conciliatory;

(ii)           Long and detailed;

(iii)          Aggressive and particular;

(i)                Simply an invitation for discussion.

It is easy to see this list as a ranking from first to last with the aggressive demand as the universally favoured option.  This is a mistake. 

Depending upon your individual circumstances, it may be “soft” or “hard”; that is, the language may be calm, approachable, and invite a generous response, or it may be formal, aggressive and threatening. 

What form this opening demand takes will be chosen by your adviser gauging from your joint assessment, what is most likely to get you the best outcome. 

Occasionally, it is tactically sensible to segment the issues, and deal only with particular parts of the dispute, one at a time.  This will depend upon your assessment of your opponent’s character, and your adviser’s best guess as to how to manoeuvre your opponent into agreeing to meet your goals. 

It should be comprehensive and cover (or at least have a plan for) all of the issues.  It is a framework for resolution.  It should give a short history of your relationship, set out the current relationship and any existing arrangements, list any assets that are relevant and provide your version of your ideal outcome as a proposal for resolution.

IT WILL NOT BE TAILORED TO MAKE YOU FEEL BETTER.  IT IS NOT DESIGNED TO BE A CHEAP SHOT AT YOUR FORMER PARTNER. 

One of three things will happen once this demand has been sent:-

(i)                Nothing;

(ii)              Your former partner will take this letter to an adviser, seek some advice and then respond;

(iii)             The adviser will respond with, hopefully, an acceptance of the proposal, a rejection, or a rejection with a counter-proposal. 

These two pieces of correspondence, unless further issues arise, should form the framework for what is settled and what is in dispute. 

Other issues will creep in, and there may be attempts to renege on issues that have already been resolved.  As a matter of Law, until the entire agreement is resolved, parts of it that are agreed, are not irrevocable, that is, you must have an entire agreement signed and sealed before any part of it is enforceable. 

2.         HOW TO KEEP INFORMED WITHOUT FRUSTRATION

The cost of your matter can escalate substantially based upon your conduct.  It is natural to want to be informed and to gain any tactical advantage which is available. 

Unfortunately, for some people, this is interpretated as a strategy of constantly bombarding their adviser with contacts seeking and re-seeking the same advice, cross-ploughing the issues, second-guessing and querying advice, and even threatening the adviser. 

Your adviser is engaged to help you.  You should feel confident in and comfortable with your adviser and the advice given.  If you do not feel comfortable, CHANGE ADVISERS. 

Calling constantly (sometimes several times per day whether there is an issue to be resolved or not), will simply escalate the cost of the job.  It is important that when you are contacting your adviser that:-

(i)            You have a question to ask or information to give;

(ii)              You have not already asked this question;

(iii)             You are direct and to the point (legal advice is sold in six (6) minute units).  Do not use contact with your Solicitor as very expensive counselling. 

(iv)             You listen to the advice given AND ACT UPON IT. 

(v)               Emailing your questions and waiting a short period of time (should be no more than four (4) or five (5) working days), for an answer, is the most appropriate way to go about this. 

Remember, if your adviser needs information they will contact you.  

You should be receiving a copy of everything that comes into or goes out of your adviser’s office.  This should automatically keep you up to date so that if anything is happening on your file, you will be aware of it. 

Be conscious of not falling into the trap of constantly seeking time and cost estimates from your adviser.  These estimates are almost always subject to interference by outside parties (your former partner, his or her advisers, the Courts, valuers, Barristers and others). 

These deadlines can be a source of frustration and division between you and your adviser.  They serve no purpose other than to create a point of difference.  If you are anxious that the matter is not moving quickly, put it on a fortnightly bring up and review the matter yourself every fortnight.

3.         RESPONDING WITHOUT EMOTION 

Often, as a result of unresolved emotional issues, one party (at least), will attempt to conduct the matter as some sort of revenge seeking exercise.  Always, always, always, the best tactic to defeat this, is to respond logically, and without emotion.  You may be tempted to allow yourself the luxury of an equally emotional response.  This will:-

(i)                Derail any chance of a quick resolution;

(ii)              Alienate any children involved who will be very quick to see who is causing the problem;

(iii)             Add to your costs;

(iv)             Lengthen the time to finalise the issues;

(v)               Distract both you and your adviser from the ultimate goal. 

Your adviser is engaged to provide you with an explanation of the Law and suggest options available to you.  Your adviser’s role is then to follow your instructions.  Consequently, your adviser will take any step which you want taken, unless it is ethically inappropriate.  You are responsible for the course that this matter takes, and the cost and time that it takes.  You cannot control or direct what your former partner does, but you can influence it by your own actions. 

Unfortunately, many people mistake this logical, unemotional strategy as weakness.  It is important to see this approach as a strength.  You should stay focused on your goals rather than becoming distracted by any emotional nonsense being thrown at you by your former partner.  This takes some discipline and strength of character. 

4.         COST CUTTING

It is possible to keep your costs down without compromising the quality of your advice or the outcome.  Staying in touch with your adviser when you have something to say or you have a question, whilst keeping an eye on the speed of the matter, is the best way to keep the costs down.  Another handy strategy is to avoid arguments about peripheral issues.  Look at the things that you want to achieve and keep bringing the discussion/argument back to those issues. 

5.         DON’T BE INTIMATED/PROVOKED

A tactic often employed by a party with no interest in finalising the matter (say a former partner who has most of the assets and will only lose from a resolution), is to attempt to either:-

(i)                Provoke arguments on a range of non-core matters;

(ii)              Personally intimidate you. 

(i)            Provocation

            Any issues raised will need to be dealt with but being dragged off the main path to have a long-winded argument about an irrelevant matter will not help the cost or the time taken to resolve the dispute. 

(i)            Intimidation

If you are being intimidated:-

(i)            Seek advice;

(ii)          Keep calm;

(iii)         Channel all communications to your adviser so that you do not have to have any or much contact;

(iv)         Seek the protection of the Courts if you feel that you or your property is in danger. 

There should be no need for you, having engaged an adviser, to be forced to run a parallel argument yourself. 

Useful phrases to deflect any attempt to argue with you directly are:-

(i)                I don’t want to argue with you about that, the Lawyers will sort that out;

(ii)              Take that up with my Lawyer;

(iii)             Look, I have hired an adviser to work that out;

(iv)             If you want to argue about that, go and argue with him/her.

This strategy “third parties” the issue, and should take the heat out of any contact.  Again, with any direct contact that you are required to have (contact handovers, public functions etc), keep the contact light and polite, get done what you need to get done, and withdraw.  Do not see this as an opportunity to allow yourself the luxury of an emotional response.

This will almost always set the course of your matter on a backward path.  Report any observations or statements which are relevant and assist with the conduct of your matter. 

6.         EXPERTS AND VALUATIONS

An important part of resolving this issue is agreeing or setting values on assets that you have.  Getting this right can make an enormous difference to the benefits you receive. 

In many cases the parties will suggest asset values and there will be agreement, avoiding the necessity for any formal valuation process and saving that time and cost.

If there is no agreement however it will be necessary to engage a valuer.  This can be an expensive and time consuming exercise particularly if the parties cannot agree on the terms of engagement of the valuer.

It is open to you to obtain your own valuation evidence. This is the best way to be satisfied that you know what these assets are worth.

Money and time can be wasted though if you get a valuation and it turns out to be the same as the value suggested by your Ex.

You should:-

a.            Try to agree on a valuation or a set of facts;

b.            If that cannot be done try to choose an expert from a panel of at least three.

The difficulty with an agreed approach from one valuer is that, whilst you will save some time, you will most likely stuck with the opinion of that expert, as it is quite rare that the Court will allow further expert evidence if you believe that the Court appointed expert is incorrect.

It will often be necessary to obtain evidence from an expert on a particular set of facts (children’s welfare particularly).

Family Reports

These expert reports (“Family Reports”), follow a particular format and are conducted by specialists in assessing the interactions of family members.

The report writer will observe each of the family members in contact with each other in different situations and settings, and ask them questions about their opinions and views on the issues between them.  Then a report will be produced which contains conclusions which are far reaching and hard to dislodge.

This family report process is often central to determining where children live and can set the status quo for years to come.

It is therefore absolutely fundamental to understand the process and prepare for it, putting your best foot forward.

The central issue in the mind of the report writer is child focus.  This is an often misused and misunderstood phrase.  It can sometimes be used to justify all sorts of offensive behaviour. 

Child focus, put simply, means making every decision based upon what is best for the child involved.  This is not so easy in practice and everyone will have a different idea of best interests.

What the report writer is looking for however is an even tempered, considered approach to the issues relating to where children live.  That will involve thinking and responding with restraint and conceding points where they do not compromise the safety of the children.  Often the issue revolves around the lifestyle or goings on in one of the households and a concern about exposing children to those events.  The safety and appropriate upbringing of children and their supervision is a first priority and should always be.  It is sometimes difficult to divine just where the line between different but acceptable behaviour (“things you wouldn’t do”), and inappropriate and unacceptable behaviour.

You can and of course should have a view and express it.  You are a parent and, regardless of the situation you have a say in the upbringing of your child.  That should be expressed appropriately to the report writer, without hyperbole and excessive emotion.  This should also be pointed out to your ex in a way likely to get a favourable reaction. 

Just as difficult sometimes is the trial of even finding out what’s actually happening when your child is away from you.

Inevitably, information comes from your child.  This is a difficult one.

Firstly, it is important not to cross the line into interrogating your child on return from spending time with your Ex.  It is normal, indeed healthy to be interested in your child’s activities when not with you.  It strengthens bonds and can assist with your child giving you signals and feedback that they find hard to do. 

The problem with overdoing this is twofold. 

Firstly, it can create incredible stress for the child and turn handovers into a battle zone.  It will in many cases take centre stage in the relationship breakdown and hijack any process designed to resolve it. 

The relationship will remain fractured, the costs and time will blow out and the children will suffer.

Secondly, children, the perceptive little beings that they are, can sometimes realise that this interplay gives them quite a position of power.  They can realise that the release of inaccurate, exaggerated or false information can get them into a position of control and indeed reward.

The complaint that, “it’s always Christmas when the children go there and the rules are non existent”, is quite common.  There are often problems settling children back into a routine once the reality of homework and school returns.

These issues simply need to be discussed and resolved and, again, a child focus will achieve this over time.

Of course it’s hard to keep this focus in the face of provocation and lack of reciprocation. 

Report writers pick up on this most times and will (or should) support parents who persist in trying to help keep children centred and safe, despite no assistance from the Ex.

This is the approach to take to both the report interview process and indeed the entire management process of children moving between parents.

Children are incredibly perceptive and, over time will realise which parent has their interests at heart and is genuinely interested in their long term well being, rather than points scoring, poisoning and pandering to the immediate gratification of children.

Keep at it, keep communicating both with your Ex and most importantly with your children, and you will emerge better for it (and so will your kids).

6.            JOINT EXPERTS

The Courts now have the power to appoint joint experts to investigate certain aspects of the dispute.  The most common is a Psychologist or Family Report writer who can look into both households and make recommendations regarding Residence and Contact.  Other experts who are occasionally appointed jointly are accountants or valuers to deal with property or businesses which are part of the matrimonial asset pool.  The parties can ask for joint experts, but this has not been widely embraced by the legal community, largely because one never knows what the expert is going to say, and is almost always, one of the parties is disappointed with the outcome.

Notwithstanding this, significant time and cost can be saved by looking at this option.

7.            WHEN ENOUGH IS ENOUGH – COMMENCING COURT PROCEEDINGS

There are times where it will become obvious that you are not going to get a negotiated solution, or that there are remaining parts of the dispute which are not going to be solved by agreement.  There are also times when there is tactical advantage to commencing Court proceedings.

There are two jurisdictions in Australia where you can start Court proceedings in Family Law matters:-

(i)                The Family Court of Australia;

(ii)              The Federal

Magistrates Court

.

In recent years the Federal Magistrates Court has been given jurisdiction to deal with these matters, under a new, simpler and more streamlined process to help reduce waiting times.

It has power to deal with slightly more limited types of matters than the Family Court but is faster and simpler to deal with.  It also has a reputation for punishing non-compliant parties with costs Orders, which has not been earned by the Family Court.

Choosing a jurisdiction is sometimes important.

Once you have decided to start Court proceedings it is important to ensure that those proceedings are used as a tool to get your desired outcome.  This has a lot to do with the language and demeanour of both you and your legal adviser.

In many cases (but not always) your outward appearance will determine the response that you get.  If you are forced to commence proceedings, almost always, the appropriate attitude to display is quiet, determined and rational.  This allows the opportunity for you to use the Court proceedings as a threat or a weapon to get a rational discussion going and thereby short circuit the process.

If, of course, there is no opportunity for reasonable discussion, this attitude will also serve to bring the matter before a Judge or Federal Magistrate quickly without you getting involved in minor matters that slow down and side track your Court action.

Choosing the timing of commencing your Court proceedings is important and you should map this out with your adviser in advance. 

You should agree the number of attempts that need to be made to try and resolve the matter, after which the Court proceedings become the answer. 

You can waste an enormous amount of time and money in a long-winded series of correspondence, negotiating with somebody who has no intention of resolving the matter with you.

It is important to have a clear discussion with your adviser about when enough is enough.  It will be different in each matter because of the personalities of the players and the facts involved. 

In some cases, particularly if there are time limits about to expire, it may be that you need to shorten everything down.  At the other extreme, if you are in possession of many of the assets and will not be advantaged by pressing things, doing nothing may be the best option. 

Of course, what is going to advance your cause may be opposite for your Ex.  It may not be in your Ex’s interests to press on to resolution.  This needs to be taken into account.  The strategy is as important as any other component of the process but is often forgotten by parties who are bound up in the emotion.  You need an adviser who can cut through this and keep you focussed on the goals and the game plan.  If this isn’t happening CHANGE ADVISERS.

Pre-Litigation Requirements

The Court now has compulsory pre-litigation steps which must be complied with before your Court proceedings can be commenced.  These steps now mean that you cannot start a Court action without having gone through a Government controlled process of counselling and mediation, and obtaining a certificate that you have done so (or at least tried to do so if your Ex will not participate).

This is yet another opportunity to short circuit the time and cost of the matter by being smart about what it is that you need out of a resolution.

It is sometimes said that negotiation is about, “letting your opponent get what you want.” 

As with any piece of contact with your Ex, you should decide what issues are important to you, which ones are important to the Ex and negotiate to get yours whilst conceding the ones which are less important to you.

If this can be done, you will have the resolution you want without the cost and delay which comes from running all the way to a court process.

8.            DOES STARTING COURT ACTION MEAN WE’RE GOING TO TRIAL?

If you are forced (or it becomes in your interests) to commence Court proceedings in order to advance the matter because you are not getting anywhere, this does not automatically mean that you are stuck with the cost of taking the matter all the way to trial.  In fact, statistically, around 93% of all relationship breakdown matters never get to trial.  This is despite a large number of them starting the Court process.

The Parliament and the Court have built into the Court process, several circuit breaker points, where matters are likely to settle, Mediation, Conferences, Directions Hearings and other processes designed to create an environment for resolving some or all of the issues.

If you are not getting anywhere with negotiation, it will be time to consider commencing Court proceedings.  This does not mean that your matter will go all the way to trial.

It is however, a very clear signal to your Ex that you are serious and stalling or pouring scorn on proposals to settle, will not stop the matter from being finalised.  Many times, a party simply doesn’t want to deal with the issues, or is focussed on the emotional battle, finding it a way of dealing with the breakdown of the relationship. 

This attitude needs to be adjusted and in many cases, commencing court action will bring about the realisation that the matter isn’t going away and the stalling tactics won’t work.

This doesn’t mean your matter is going “all the way”.  It might just bring your Ex to the point where the issues can be discussed and resolved.