So you are going to Court?
As most of you know, I heavily advocate for families who are experiencing separation and divorce to do everything they can to stay away from the Family Court process. After 14 years working in the family law system, I have experienced firsthand the difficulties faced by families who find themselves before the Courts. The Court process of itself is not to blame- we need it and in our Country we are blessed to have a justice system that is independent, fair and applies the rule of law. However, when it comes to relationships, the application of rules and laws has never been more challenging.
Of course, for some families this is their only option. What is becoming more and more common is the large number of people who are acting on their own behalf in our Courts. I expect that this is in part due to the significant costs involved. The beginning to the end of a Court process will take at least 2 years and cost you in excess of $50,000 in legal fees. This figure clearly does not include the significant emotional and personal costs that will also flow.
This significant financial cost makes it near impossible for many people to have lawyers assist them and while services such as legal aid are available for some, there is still a very large number of people that cannot afford to or choose not to engage lawyers.
Appearing in the Family Courts is not an easy thing for even the most experienced family lawyer, and I can only imagine is an incredibly daunting experience for someone acting on their own behalf and being faced with a decision that may or may not be in their favour but that relates to often their most prized possessions or more importantly their children.
So if you do find yourself acting on your own behalf in the Family Court system, here are a few tips that might help you in navigating your way through:
1. Be organised.
If you’ve ever set foot in a lawyer’s office you will generally find walls lined with folders, full of documents, that are indexed and well organised, that represent the hard work that has gone into a client file. If you are acting on your own behalf, you should have an identical system in place. All of the documents that relate to your Court case should be organised and easily available to you and you should bring them to Court each time you attend. Ideally you would organise these into a system where all of your own documents are chronologically identified in a single folder, the other party’s documents are arranged in a similar way and other important documents such as Court Orders, Family Reports and the like are separated and ordered chronologically in a file. You may wish to index or tab these documents but either way you need to be able to find them at a moment’s reach when you are standing before a Judge and having to make submissions on your own behalf. Keep copies of all correspondence that you send and receive, and when you are speaking with either the other party in your proceedings (which is often a lawyer) or perhaps even an Independent Children’s Lawyer, take a note of the conversation, the important steps and the action steps that you need to take. Keep diaries, be aware of important Court dates and don’t miss them.
2. Be clear about what you are seeking.
Perhaps the most challenging part of the Family Court process is understanding the limitations on the Orders that a Court can actually make. It is not uncommon that my clients tell me what they would ‘like’ to achieve and I find myself explaining that the Court does not have the power to make those Orders or give them that outcome. When you are preparing your Application or Response material, try and sit down with a lawyer and obtain advice as to whether the Orders that you are proposing are even able to be made by the Court. The Orders that you are proposing are the Orders you are asking the Judge to make in your case. Therefore, if you are asking the Court to make Orders for your children to live with you, that is what your document should say. If you’re asking to spend time with your children, then your document should specifically set out the amount of time, how it will occur, when changeover will be and the frequency of those visits. The detail in your Orders is essential and something you should really try and sit down with a lawyer to discuss. You can get assistance from free community legal centres or even Legal Aid about the best way to draft that document. If the Orders you are seeking can’t be made by the Court, your Application will hit a speed bump before it has even begun.
3. Provide relevant evidence and only relevant evidence.
A Court is ultimately bound to make a decision based upon legal principles, taking into account the relevant evidence that it is provided with. It is our job, both as litigants in person or as legal advisors, to ensure that Judges are provided with the evidence that is relevant to assist them in making their determination. The word “relevance” is the key here. It is not expected that when acting for yourself you will have a thorough understanding of the complicated rules of evidence that guide our Courts on these issues. However, in the most simplistic sense, you should look at the Orders that you are asking the Judge to make and use them as a checklist to make sure that the evidence that you have included in your Affidavit material supports the Orders that you are seeking. You do not need Affidavits from every family member and friend that you have ever known to support your case. It is important, however, that you provide all of the relevant evidence that you can to support the Orders that you are seeking. Once you have prepared any draft Affidavit material, do try and make an appointment with a lawyer to at least run through the draft so that they can identify and assist you with any discrepancies before you file the documents.
4. Be respectful.
When appearing before the Courts, always be respectful. Our Courts are the busiest they have ever been and Judges are faced with the difficult challenge of trying to make very important decisions for families in very limited amounts of time. Your Judge may appear to be dismissive, frustrated and at times even angry, but it is essential that at all times you remain respectful. They are merely trying to do their job as best they can. If they ask you a question, answer the question – answer it clearly and concisely. If the question requires a yes or no answer then provide it – there is no need for long winded explanations. A Judge in a busy list will sometimes have 20 to 30 families to deal with in only 2-3 hours. It is important that you assist them in getting to the heart of the issues that you need resolved on that day and you can do that best by preparing well. Go to Court with some notes of the key things that your Judge needs to know to make the decision that they need to make that day.
5. Be prepared.
Preparation is the key when you’re finding yourself before the Family Courts. Our Family Courts are open Courts and this means that you can go and sit in the back of the Court and listen to how a Judge deals with cases just like yours. If you are acting on your own behalf, it is worth doing this before your Court case so that you understand the process and the procedure and the way your Judge might deal with matters similar to yours. The Family Courts have recently launched a YouTube site that does contain useful videos of different steps involved in the Court process. There is a wealth of information available online these days that can assist you in preparing and attending at Court. Do take the time to prepare well. A lawyer when representing a client in the Court process will spend many hours preparing the case, fine tuning it and ensuring that all of the relevant evidence is before the Court. When you’re acting on your own behalf, you need to apply the same level of diligence to your case. Seek as much assistance as you can to help you through, but ultimately treat it seriously. Be organised, well prepared and respectful at all times. The Family Courts really should always be seen as a place of last resort for your family after the breakdown of a relationship. Even if you have found yourself in the Courts, you can still reach an agreement with your former spouse along the way so always keep looking for those opportunities, even when it seems that nothing can be agreed.
This week I am presenting an online workshop with more information on what ‘Going to Court’ really means, the documents you need to prepare and what to expect when you get there. You can register for this workshop here.
The Family Courts really should always be seen as a place of last resort for your family after the breakdown of a relationship. Even if you have found yourself in the Courts, you can still reach an agreement with your former spouse along the way, so always keep looking for those opportunities, even when it seems that there is no end in sight. And on that note… a final message from me just in case you were thinking of uttering those famous words-“I just want to go to Court!” Trust me- you don’t.
Written by Clarissa Rayward