Sarah Walker: When should you file your family matter in court?

Hi, I’m Sarah Walker, and I’m a lawyer with the Family Law team here at Turnbull Hill Lawyers.

A common question we get asked is, when should you file your family law matter in court? This will depend on a number of factors, and also whether it is a property matter or a parenting matter.

With property matters, often a matter will be filed in court where there’s been negotiations in place but these have come to a standstill. Another situation may be where there is some urgency. For example, where one party is selling assets of the relationship or dealing with other assets in a way that is going to have a detrimental effect on the other party. In that situation, you may be forced to commence urgent proceedings seeking, for example, an injunction stopping one party from taking certain actions. Where I said before that you may start proceedings where negotiations have come to a standstill, this is a very common ground on which to commence proceedings.

In that situation, you may have been having negotiations with the other party, either directly or through a lawyer but have not made any further progress. If that’s the case, you may be forced to commence proceedings. What court you would commence proceedings in will depend on the type of matter. For example, where there are not assets of huge value or complex business structures, you’d file in the Federal Circuit Court. Where, for example, there may be a complex company structure or large asset pool, you’d file in the Family Court.

In parenting matters, there are certain considerations that must be had as to what court you’d file in. For example, where there are serious allegations of abuse, you’d file in the Family Court, which is the higher court. For your standard parenting matter where you may be at loggerheads over, who will have children at a particular time, you’d file in the Federal Circuit Court where there is no urgency.

In parenting matters it must be remembered that under the law in this area you must attend mediation prior to filing in court. When you attend a mediation, and whether you reach an agreement or not, you’ll be issued with what’s called a Section 60I Certificate. You need this certificate to commence proceedings in court. There are certain situations where you won’t be required to have one of these certificates, and that’s where, for example, the child is at risk of abuse, or there is some real urgency and need to have the matter listed quickly and without the obligation of attending mediation.

In any of these situations, it can really assist you to have legal advice or someone to assist with drafting court documents. We would suggest that if your matter has any of these characteristics or you feel that your matter has not progressed any further, we encourage you to give us a call here at Turnbull Hill Lawyers.

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