The inevitable consequence of separation is that decisions will need to be made. In many cases these are easily identified and parties can work together to manage their conflict, and move forward with dignity and minimal cost to themselves, their extended family, friends, and society.
In some cases this is not possible without outside help. One or both of the separated parties may be struggling psychologically with the separation process, and not yet be ready to move on and consider what life might be like as a separated person. Others may lack the capacity to do so, due to overwhelming emotion, mental health issues, substance abuse or family violence. It may be that one or both parties lack the ability to get the necessary information to understand the issues and make good decisions, and need significant support to move towards life as a separated person.
Litigation is a necessary option where one or both parities cannot or will not obtain the supports necessary to make their own agreements. The court will impose a decision on a family where the parties cannot do this themselves. Sometimes this can be the only way for a family to obtain an outcome and put the separation and everything associated with this, behind them.
The adversarial approach
The court system requires that one party initiate and the other respond with a statement of their position, or a breakdown of what they want. This is supported by an affidavit, or the story that explains why they should get what they are seeking and the other party should not. The competition between us-and-them is inherent in this process, and the goal of this approach is that one will win with orders in terms of their proposals, and the other will lose.
The way to win, is to provide evidence that will persuade the judge that what you want is the best outcome. There are guidelines in the legislation, factors that the judge must take into account, but ultimately the decision is theirs, and each judge could make a different decision. The evidence is contained in affidavits, where each party is required to say all the positive things about themselves, and all the negative things about the other, to encourage the judge to accept their proposals.
The Court System
Much of the evidence provided by parties and their friends is often contradictory, and it can be very difficult for a judge to decide one way or the other. Independent evidence can be obtained to show that the story of one party is more likely to be closer to the truth. In parenting matters, a Child Consultant or psychologist can be asked to prepare a Family Report, to explore the background, assess the relationships between family members, gather evidence from other sources, and make recommendations about what the outcome should look like. Although prepared by professionals who are qualified and experienced, these reports can vary significantly, and this can make predicting the judge’s decision difficult.
One of the foundations of the judicial system is the ability of the court to test the evidence. What is put in an affidavit by one party, is often contradicted or disputed by the other party. Before the judge can apply the law and make his decision, he must make findings as to the facts forming the basis for the dispute. The version of each person is tested by cross-examination, which means that many questions are asked to try to expose the basis for any assertions and whether they should be accepted as truth by the judge.
Most parties are very anxious when they come to court, and even more so when they must enter the witness-box and be interrogated about what they have said about things that often happened some time ago. Some cope reasonably well with this experience and provide a credible version of their case. Others are overwhelmed by the experience and do not portray what they want to, and find that this impacts significantly on how they are viewed by the judge and the ultimate decision made.
There are many costs associated with going to court. Legal costs are the most obvious, and can often be completely out of proportion to what is being argued about. It is very important to obtain estimates of not only what the costs are at each stage, but also of what they are likely to be if the case proceeds further.
There are also many other costs. Litigation is very disruptive to work, as there must be time off for preparation of documentation, and attendance at court events. The court process involves various different stages, and each party will be required to attend each of these. Often a case may not be reached and there can be many delays due to the clogged court system. Even when a final hearing date has been reached, it can be many months before the judge publishes their decision.
Going to court is a stressful experience for most parties. The anxiety associated with court, the lengthy delays, and the uncertainty of the outcome can be considerable. There is also a significant anxiety resulting from remaining focused on the negative things that have occurred in the past. The consequence of the competitive nature of litigation, and the win/lose approach, can play havock with co-parenting relationships and connections between mutual friends and family. This can result in isolation that further compounds the stress of this process.
While initiating court proceedings may seem inevitable, there are many options to step out of the system or reduce the issues requiring judicial determination and thereby the detrimental impact of litigation.
Sometimes commencing the court process provides motivation to attempt an alternate approach. The court has compulsory mediation/FDR at various stages, and at each court event there will be encouragement to try to resolve the matter or reduce some of the issues. In my experience most family lawyers seek out these options, and will promote any opportunity for the parties to take back the power to make their own decisions about their future.
Before going to court, the many options for resolution should be explored. These provide a very different approach to decision-making, and increase the chance of moving through the separation process and associated decision-making with dignity and minimal cost to the family. Particularly where children are involved, and it is crucial to maintain a positive and co-operative parenting relationship, all attempts should be made to avoid the litigation process.