Pre-Litigation Mediation v Perils of Litigation

As Brisbane Family Lawyers, we have consistently adopted the view that in the vast majority of cases pre-litigation mediation as a cost effective method of resolving property disputes.

The purpose of this article is to highlight one of the perils of litigation.

When you commence proceedings either in the Federal Magistrates Court of Australia or the Family Court of Australia you will not know which Federal Magistrate or Family Court Judge your case will be assigned to.

In a recent case our client, the wife, commenced proceedings in the Federal Magistrates Court of Australia we were assigned to a particular Federal Magistrate. The Federal Magistrates Court of Australia works on a docket system which means that once you are in a Federal Magistrate’s docket you will remain in their docket throughout the case.

In this particular case the property consisted of some real estate, some motor vehicles and some superannuation. The case was prepared and run by both the husband and the wife on the basis that the husband was retain the former matrimonial home and the motor vehicle and his superannuation and would pay to the wife a sum of money.

At the conclusion of the Trial the Federal Magistrate made certain findings and determined that the wife was entitled to a percentage of the property. However, instead of going on to make consequential Orders he invited the parties to make submissions as to the appropriate Orders to be made. Needless to say we made submissions that the proper Orders should reflect the way the case was run by both parties and the husband pay to the wife a sum determined by the percentage awarded by the Federal Magistrate and upon payment that the wife transfer to the husband all her right, title and interest in the former matrimonial home and motor vehicles.

However, the solicitors for the husband, presumably on instructions, then suggested Orders which were not in accordance with the way their case was run namely that everything be sold and the net proceeds of sale be divided between the parties in accordance with the findings of the Federal Magistrate.

Unfortunately, for our client the Federal Magistrate adopted the Orders suggested by the solicitors for the husband and Ordered that everything be sold. However, as the husband was in fact in possession of the former matrimonial home and all of the motor vehicles it has been difficult, if not impossible, to get the husband to agree to the property and goods being sold.

We are presently going through the process of requiring the husband to comply with the various steps to effect a sale of the former matrimonial home and in the event that he fails to comply with these requirements we will be making an Application to Court for the appointment of a Trustee for Sale and consequential Orders.

The peril for our client in this litigation is that she has still not received the money that she is entitled to and it may be sometime before she in fact does.