Author: John McGuinness

Golden Rules when representing yourself. Part 5

Part 5 on…

THE GOLDEN RULES OF LITIGATION

THE DOs

5. CONFIRM THE FACTS WITH EVIDENCE

The facts

Like we discussed in Part 4, legal disputes are often about the facts.

The disagreement might be about what you said or promised to do, whether you did it, how you did it, why you didn’t do it, what care arrangements you can give your child, whether your child is denied a “meaningful relationship” with you, whether you were properly notified about a problem, whether your ex was willing to negotiate child care arrangements in good faith.

These types of issues are all issues of fact.

Disputes about the facts are decided on the evidence presented by both parties. Most cases are easily won or lost on the strength of a party’s evidence. So it is essential that you use reliable evidence to support the facts that you assert (say is true) or any fact that may be disputed.

Remember, as one member put it,

“Expect her to lie. Expect them to believe her. Expect no fairness. Expect to need mountains of evidence to prove your case.”

Evidence comes in many forms: verbal, written, even pictorial. Just about anything you can think of that can verify something can be used as evidence. For instance, hand-written agreements, formal contracts, invoices, receipts, quotes, bank statements, telephone records, government documents, expert reports, scale models, plans, letters, diary entries, journal entries, photos, videos, the testimony of witnesses, can all be used as evidence.

Even notes taken at the time of an event might prove valuable as evidence later on. This is why it’s important throughout the preparation of your case to keep an accurate record of all developments. Obtaining the right evidence can be time consuming so you will need to collect your evidence as soon as possible. Also, with all evidence you wish to use, make sure you look at it very carefully.

Does it say what you expect it says?

A word of warning: quality not quantity is what counts. Quality evidence ties in with exactly what you are asserting and directly verifies one or more elements of your case.

If it is indirect, vague, ambiguous or spurious, reject it and try if possible for better evidence. Sometimes though, evidence that merely favours rather than confirms your version of the facts may be the best you can get. Although this isn’t ideal, it might be more than your ex has.

Above all get witnesses, especially professionals (teachers, doctors, therapists if any) involved with your former partner and kids.

Potential witnesses include: extended family; school professionals; neighbours; parent volunteers; day care, medical professionals (as in your GP); adult activity leaders.

Other than court-appointed professionals (best avoided wherever possible), people who see you with your children and/or otherwise know you personally are going to be your best witnesses.

Your Witness List must be exhaustive.

Remember, not everyone will support you, nor will they be available when you need them. So think of everyone you can. Then work out what facts they can prove by their testimony.

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Golden Rules when repesenting yourself. Part 4

Part 4 on…

THE GOLDEN RULES OF LITIGATION

THE DOs

4. KNOW THE FACTS

You know the facts. You know the whole story. You know too much.

So if you’re representing yourself, you have to realise that what’s important to you is not necessarily what’s important or relevant to your case.

This ties in with 6. KNOW THE LAW. You have to know the facts that are relevant to your application and pare down your story to just those facts.

A good way to do this is to write down each fact in a single bullet point line or even a single sentence. If you can’t do that, then you have too many facts tied up in your single idea/explanation. They must be separated out. You don’t need the “story” that goes with each fact yet, you just need what was done, by whom, when;

for example:

ex prevented children from substantial and meaningful relationship with father (you) from date to date. (Child abuse)

I, the father, bathed, clothed, fed the children breakfast of eggs and toast, made and packed school lunches of sandwiches, juice, snack, took them to school daily from date to date. (Primary care)

I, the father, collected the children from school, provided snacks, helped with the homework, cooked dinner, got the children ready for bed, and read them a story. Lights out at 7:30 PM Monday to Friday from date to date. (Primary care)

I, the father, have successfully completed a parenting course with Family Relationships Centres. (Primary care)

I, the father, have sought and received family counselling from Family Relationships Centres. (Primary care)

From here you can make sure your affidavit has these facts and include the evidence as annexures.

This is your case; your reason for applying for the parenting orders you’re seeking from the court. If you just “tell the whole story” you’ll have a lot of irrelevant stuff (as far as the court, your application, your case is concerned) that can be attacked and used against you, used to prove her case or your relevant evidence struck out with the irrelevant stuff.

So skip the story and like the detective from Dragnet always said, “Just the facts Ma’am. Just the facts.”

Want to know more? Join the club!

Join McKenzie Friends Club (http://familycourtsecrets.com.au/)

Golden Rules when repesenting yourself. Part 3

Part 3 on…

THE GOLDEN RULES OF LITIGATION

THE DOs

3. OBEY THE TIME LIMITS FOR
LODGING DOCUMENTS

Respond on time to the case management directions you receive from the judicial officer not forgetting that YOU can’t personally serve documents on the other parties, but have to get it done by someone independent of the matter. This means that if you’re pro se or representing yourself, you have to have all documents served on the other parties by someone (over 18 of course) not directly connected with the case eg a party, a witness, etc.

Also if you receive correspondence from your ex’s lawyers, requesting disclosure, get it sorted within the time limits in the Rules. Don’t forget that you don’t necessarily have to produce documents, just disclose their existence.

So you may have documents that you’ve given to a lawyer for advice or some specific work that are then “legally privileged”. You have to disclose the existence of the document, but not the contents. Of course, if you’ve already included it as an annexure to your affidavit, privilege is gone, but you can object as to why sighting the original is necessary.

If it smells like it’s a fishing expedition, or being done to “make work” for you and appears to be irrelevant to the dispute, you can object TO THE COURT — not to the ex’s lawyer. Don’t get into a flame war with the lawyer.

Why?

Because while you’re defending your case and brilliantly arguing your position in your best “My Cousin Vinnie” impersonation with the lawyer, clock’s ticking and YOU ARE THE ONE failing to comply with the time limits. So get it before the court before the time limit is up. By that I mean, lodge the application / submission / request for a directions hearing on the objection with the court before the time limit is up.

Getting your paperwork lodged on-time will greatly enhance your credibility with the court.

Need help understanding what’s required? Join the Club.
Need help keeping track of when things are due? Join the Club and use MyCase, built for lawyers to do exactly that for you.

Otherwise, seek out community legal centres for advice (results may vary), and chamber magistrates for help filling out the forms and explaining the procedural requirements. Chamber Magistrates won’t tell you anything about whether the ex’s disclosure requests are legally right or wrong or what kind of objection you should use. Hopefully you get someone switched on at the community legal centre who can.

Golden Rules when repesenting yourself. Part 2

Part 2 on…

THE GOLDEN RULES OF LITIGATION

THE DOs

2. KEEP ACCURATE RECORDS

You’re going to have to “evidence” your life from here on out. Everything you do with or for or about your kids must be recorded/documented. Every interaction you have with your ex both bad and good must be recorded/documented as it happens and date-stamped as soon as possible after the event or interaction. And that means most importantly, KEEP A JOURNAL!

Why?

The prima facie reliability of contemporaneous documents.

Especially in the Family Court, judges consider that documents brought into existence close in time to the events they record will often be more reliable sources than the recollections of witnesses related orally in court months or years later.

That means, your journal entry created the same day or the next day, is more reliable and therefore truer than anything a witness says from memory, especially as is normally the case, months or years later.

In McKenzie Friends Club’s MyCase case management system, there is a journalling function that creates time and date stamped file notes or journal entries that are acceptable as evidence.

Often in trials, a chronological bundle of documents (like your journal entries supplemented with images and possibly video) will provide a sound and relatively uncontroversial structure for the evidence, and the documents will often afford important and significant bases for finding facts where there is controversy.

So if you have documented every interaction with your ex, every time she has stopped the kids from seeing you and every time you followed through with access, it all becomes truer than anything she can say on the stand or in an affidavit to the contrary.

So your journal entry or MyCase file note IS evidence of what occurred and will be believed more than somebody remembering from the stand. MyCase file notes are relevant evidence for the judge’s assessment of the probability of the existence of a fact in issue and as such become your second witness when attached to your affidavit adding weight and credibility to your testimony.

In the Family Court, with its feminist jurisprudence, the average guy starting out has a 75% chance of losing. You have to prove every fact that you say and documents created (brought into existence) close to the time of the event are credible, reliable proof.

Your My Case Journal is the Backbone of Your Case! If done properly and consistently, your My Case journal becomes the heart and soul of your case, especially your parenting case.

During the trial, your My Case journal will be a valuable source of events, dates, and patterns of behaviour. Most importantly, your My Case journal will discredit fabricated testimony and lies you can expect from the other side. Your My Case journal should also contain surprises to keep the other side off balance.

With details at hand, you can deliberate on these entries for accurate summing up.

During the trial, you will be able to present answers during questioning (especially cross examination) which are confident and specific. Your former partner on the other hand, will probably turn to, “I don’t remember” type remarks when questioned about awkward areas, which makes her a less credible witness.

So, keep accurate records. AND keep a journal in a format that will be acceptable in court as evidence.

Pen and paper done incorrectly, and it’s easy for your ex’s lawyer to object to it being accepted. MS Word file suffers from similar “credibility” issues and can be knocked out.

MyCase journal file notes are individually time and date stamped that can’t be tampered with by you, so your ex’s lawyer is stuck trying to object to it. They can’t use the old stand-by of, “you just wrote this all up yesterday, didn’t you?” to discredit you. MyCase is a “sound and relatively uncontroversial structure for the evidence”. So use it and win.

Stay tuned for the next installment…

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Golden Rules when representing yourself. Part 1

Success in litigation depends on three things:

  • the facts,
  • the law and
  • the presentation;

that is:

  1. how strong and reliable your evidence is to establish the facts;
  2. whether the law can be used in your favour;
  3. how clearly and coherently you present your case.

To make the most of these three ingredients for success there are some important rules, learnt the hard way by Australia’s best and worst litigation lawyers. As you’ll see, to use them you don’t need a law degree. Here they are:

THE GOLDEN RULES

THE DOs
DO YOUR HOMEWORK; BE PREPARED

The first thing to do is contact family relationship centres and get parent “counselling”. Start a parenting course. Get the certificate. It’s also vital for properly preparing you for a Family Report. If you don’t speak the language family professionals use, and you don’t acquire some new, higher skills for this new situation, you can easily end up with a negative evaluation, resulting in limited supervised access instead of what could have been full shared parenting. Yes, the difference can be that great.

As one member said,

“One of the first things I did after separating was to seek relationship counselling. I went to directly to our local family relationship centre; began talking to them first, and initiated the process to create a family/co-parenting plan. Best move I ever made. Now I have shared custody (week on/week off split) of my child.”

Stay tuned for the nex installment…

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Origin of McKenzie Friends

This was a UK divorce case McKenzie vs McKenzie before no-fault started. The husband, Levine McKenzie, who was the applicant for divorce, initially had Legal Aid, but by the time the case came to trial, that legal aid had been withdrawn.

Unable to fund legal representation, McKenzie had broken off contact from his solicitors, Geoffrey Gordon & Co. and proceeded to represent himself.

One day before the hearing, Geoffrey Gordon & Co. sent the case to an Australian barrister in London, Ian Hanger, whose qualifications in law in Australia did not allow him to practise as a barrister in London. Hanger hoped to sit with his client to prompt him, take notes, and suggest questions in cross-examination, thereby providing what quiet assistance he could from the bar table to a man representing himself.

The trial judge ordered Hanger not to take any active part in the case (except to advise McKenzie during adjournments) and to sit in the public gallery of the court.

The case went against Levine McKenzie.

McKenzie then appealed to the Court of Appeal on the basis that he had been denied representation.

On 12 June 1970, the Court of Appeal ruled that the judge’s intervention had deprived McKenzie of assistance to which he was entitled, and ordered a retrial. The three judges of the Court of Appeal ruled that the judge should have allowed Levine McKenzie to have a person to remain to satisfy that fairness and the interest of justice is served.

Thus we have the legal definition of McKenzie friend (a person who attends at court to assist a party to proceedings.)

The Self Litigant

Where a party to proceedings acts or appears for themselves, unrepresented by a legal practitioner, they can be called a Self Litigant.

McKenzie Friends Club provides a service for those who don’t satisfy requirements of legal aid, can’t afford a legal practitioner, or who choose to self represent.

Here is a list of some of the issues that are addressed by our Self Litigant Service:

  • How the different court systems work
  • What forms to fill in
  • How to act in court
  • How to cross examine
  • How to object
  • What to say in court
  • Data recording
  • Public information
  • How to serve documents
  • Diagrams of court process
  • Definitions and explanations of key words

Our goal is for a Self Litigant to be confident that their performance in court does justice to their cause and is deserving of a fair hearing.

Sound good? Join the Club!