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.”

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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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Defend the AVO

Why You Should Always Defend an Apprehended Violence Order

Rochelle Macredie B.A. B.Sc LLB
Solicitor*

The advice in the following article relates primarily to the law in New South Wales. Interstate readers will need to make their own enquiries in order to ascertain whether the legal situation is the same in their jurisdiction.

First of all, we need to define two terms used. The first term is “Applicant” and the second is “Respondent”.

Applicant means the person who applies for an order in this context.

Respondent means the person on whom the order is made.

What Is an Apprehended Violence Order?

An Apprehended Violence Order (“AVO”) is an order made in a Court to protect a person from actual or potential violence.

In the State of New South Wales, they are of two basic types, namely, apprehended domestic violence orders which relate to violence between parties who are in a domestic situation and apprehended personal violence orders, which relate to parties who are not in a domestic situation. The same concept is available in other States within the Commonwealth of Australia.

If your ex-spouse applies for an AVO against you, do turn up at court and do defend that application, otherwise you may find yourself in a position where you lack credibility. Don’t presume that just because you’re innocent that your innocence will be sufficient to protect you.

An excellent reference in legal matters is to be found in the Law Handbook (13th Ed) Redfern Legal Centre Publishing 2014. This book is available for retail sale, free online and is also to be found in most reference libraries.

*Rochelle Macredie is a Solicitor in NSW working with McKenzie Friends. She practices with the Sydney firm Oliveri Attorneys and can be contacted on 0407 896 832 or by email at rochellelawyer (at) gmail.com

The Duty of Confidentiality and You

The advice in the following article relates primarily to the law in New South Wales. Interstate readers will need to make their own enquiries in order to ascertain whether the legal situation is the same in their jurisdiction.

Most of you are probably aware that when you disclose information to a legal practitioner, (a solicitor or barrister), that there is a duty of confidentiality between that practitioner and you, the client. Everything seems very straight forward then but is that duty absolute? Are there circumstances in which this duty does not apply? Is it all as clear cut as it appears to be at first instance?

The duty of client confidentiality is not absolute. It does not apply if you expressly authorize the disclosure, that is, you are entitled to tell the practitioner that she or he may disclose certain information to someone else. If these are your instructions, then it is very likely that you will be asked to put that information in writing. It is also worth noting that if you make a complaint about a practitioner then you are taken to have waived privilege, this is because without this presumption, it would not be possible for the practitioner to defend either his or herself from the allegation made by the client.There are other circumstances in which the duty of confidentiality does not arise. One of the circumstances in which there is no duty of confidentiality is where a practitioner is either permitted by law, or compelled to disclose information.

There are some Acts that expressly override the duty of confidentiality an example of this would be under the Commonwealth Crimes Act where there has been an act of terrorism. If in doubt as to whether information is confidential or not, ask the practitioner under which conditions they would be compelled to disclose information but by that stage the cat is out of the bag.

The third exception to the rule, is where there are circumstances where the practitioner discloses information in circumstances in which the law would compel its disclosure even against a claim of legal or professional privilege. What sort of circumstances would compel the disclosure of this information that is otherwise privileged? This exception arises in circumstances where the information is disclosed for the purposes of preventing the probable commission of a felony. A felony is the sort of crime that used to attract the death penalty. An example of this would be murder, armed robbery and treason. The rule here is don’t threaten to commit felonies and certainly don’t commit felonies!

The operant question is when does this duty of confidentiality arise? Is there only a duty of non-disclosure when there is an agreement between the practitioner and client, or does it arise prior to that? A practitioner who presumes that information acquired outside the retainer does not attract the duty of confidentiality takes a significant risk[i]. It may well be that the client is incapable of distinguishing those communications that are legally relevant from those that are not[ii]. The client may falsely believe that any information given to the practitioner is confidential[iii]. It may be difficult even for the practitioner to discern which aspects of the communication attract privilege[iv]. There is an inherent equitable prohibition on using information communicated in confidence[v].

None of this information really solves the problem of working out when something is confidential because it falls within the scope of legal professional privilege or not. The statement of principle is that usually information given to a legal practitioner with a view to taking legal action of some sort is privileged but that some is not. The courts in determining whether a duty of confidentiality arises take the perspective of the expectation of a reasonable client, that is, would a reasonable client expect that this information communicated to a solicitor to be treated as confidential in the circumstances? The law is more on your side here than on the side of your practitioner but given that the duty is so difficult to determine that doesn’t get you very far!

The next hurdle is to determine when this duty arises. It may well be that you decide to go to solicitor A with a view to getting that practitioner’s firm to deal with your family law matters. During the course of communication with solicitor A you inform that practitioner of some fact that would normally have to remain confidential under the doctrine of solicitor-client confidentiality but you then decide that you would do better to either move to another firm and instead deal with solicitor B, deal with the matter as a self-represented litigant or simply not to proceed. The question then arises as to whether the information disclosed to solicitor A remains confidential if you do not proceed with the matter with solicitor A.

The duty of confidentiality is based in contract, that is, the retainer but it may well be that there is a duty of confidentiality that arises outside of this contractual obligation. It may well be that the practitioner owes a duty of confidentiality to a non-client where there is a duty of non-disclosure attached. As we have said there is an equitable doctrine of non-disclosure. None of this gets us very far! The general rule is that unless there is an overriding duty on the part of the practitioner to disclose information, then you are likely to be able to rely on the duty of non-disclosure in most instances in order to protect your information.

Probably, the best solution is to enter into a Costs Agreement with a firm of solicitors even if only for a nominal amount as this makes it very clear that a solicitor-client relationship exists. You don’t want to be in the position of having to take legal action to ensure the privileged nature of your journal.

Footnotes
[i] Riley Solicitors’ Manual Dal Pont, GE LexisNexis 2005 (Revised Edition) para 8040
[ii] ibid
[iii] ibid
[iv] ibid
[v] ibid

*Rochelle Macredie is a Solicitor in NSW working with McKenzie Friends. She practices with the Sydney firm Oliveri Attorneys and can be contacted on 0407 896 832 or by email at rochellelawyer (at) gmail.com

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.)

Cross Examination

The advice in the following article relates primarily to the Evidence Act (Commonwealth) and is a general explanation of the principles of cross-examination. It is not intended as instruction on how to carry out that process as that is beyond the scope of this article. If you are self-represented in a family law matter, then you will need to do your own research as the topic of cross-examination is one upon which weighty tomes are written. This article, merely gives an outline of the process so that you will have some idea as to what to expect. We suggest that you look at the Family Court Rules as well.

What is cross examination?

Simply put, cross examination is the questioning of a witness for the other side with a view to either getting that witness to say something that is favourable to your case, or to discredit the testimony of that witness.

What is the purpose of cross examination?

The aim of cross examination is to present the evidence in a new light. A word of caution should be sounded here, that being, if you don’t do it properly, then it can strengthen the other side’s case.

Cross examination as to the issue

This refers to the subject matter of cross examination, for example, whether a person did something, said something and so on.

Cross examination as to credit

This refers to the question as to whether the witness is believable or not.

The distinction between cross examination as to the issue and cross examination as to credit

The distinction between the two matters is sometimes very difficult to make. Put simply, the fact that a witness cannot be believed in respect to their evidence, does not necessarily automatically mean that the opposite is true.

Failure to cross examine

If you are challenging something a witness said and wish to cast doubt on that thing then if you failed to put it to your witness in cross examination that a contrary position was true, you will not be allowed to raise this position in your final summation. The bottom line is make sure that you suggest the contrary position to the witness who you are cross examining!

The subject matter of cross examination

The idea of cross examination is to listen very closely to what is said by the witness for the other side and to use that evidence to support your own case. It may well be, that a particular witness for the other side’s evidence is favourable to your own case and so there may well be no need to cross-examine. On the other hand, sometimes, these witnesses can be persuaded to bring out further evidence that is useful to your case. The situation, where the other side’s witness says something that is damaging to your case, is a situation where you definitely cross examine. There are two alternatives here. It may well be that the witness is mistaken, or alternatively, it may be that the witness is opposed to you. Telling which is the hard part. Here you have a choice between attacking the witness’ competence or attacking the witness themselves, that is, the witness’ credibility.

Competence
Lack of perception

This relates to the witness’ capacity to observe the situation to which they are giving evidence. It involves the five senses, that is, sight, hearing, touch, taste and smell. There is however, also, the question as to whether the witness was able to accurately perceive the situation in their circumstances, for example, whether it would have been possible, under the weather conditions prevailing at the time, to perceive the matter to which they are giving evidence. There is also the question as to the quality of their recall, that is, for example, whether time has dimmed their memory.

Credibility

Simply put, this means:

Is the person telling the truth or are they telling some distorted version of events that favours the other party?

There is a very tricky rule here. And that is that, answers on collateral matters must be taken as final in cross examination. That is, if there is an issue, raised in cross-examination that is peripheral to the issue that is not the main issue, then you have to take the witnesses’ answer as final, even if you are pretty sure they’re lying.

An example of this would be, in the case of Harris v Tippet (1811) 2 Camp 637, where a witness was asked in cross-examination whether he had attempted to dissuade one of the plaintiff’s witnesses from attending. He denied that allegation. It was held that the plaintiff could not recall the witness to cross examine them as to this point.

Obviously, determining whether something is collateral or not, can be very difficult at times. The case of the Attorney-General v Hitchcock (1847) 154 ER 38, tells us that if the matter is something about which you would be able to give evidence in its own right, then you are entitled to contradict the witness, that is, you are entitled to cross examine.

Now, just to complicate matters, there are four exceptions to the rule regarding cross examination on collateral matters. These are:

  1. Bias the fact that the witness is or may be biased in favour of the party calling them. Please note that this exception only applies to matters that are material to the cause, not merely collateral. In the case where this matter of bias relates to material issues, evidence is allowed to be called to support this assertion of bias.
  2. Fact that the witness may have been convicted of a crime.
  3. If the character of the witness or physical health is such that it makes it unlikely that that witness would tell the truth.
  4. The witness has made a previous inconsistent statement.

There are certain matters with which a cross-examiner should deal.

A. Competence

  1. Lack of perception, capacity or opportunity to recall
  2. Lack of accurate recall
  3. Lack of narrative ability

B. Credibility

  1. Bias, interest, prejudice
  2. Prior convictions
  3. Moral character, disposition or mental condition
  4. Prior inconsistent statement

Rules of Good Cross Examination

Know when to stop
Have a clear idea in mind about exactly what you need to elicit from each witness and when you get there – stop. Don’t be tempted to ask that one question too many!

Use ordinary plain language
You do not want to have to explain questions to witnesses. Remember that most are not experts in law, so just ask your questions simply so that the questions will be readily understood by the witness.

Ask only leading questions
You should guide the witness as to which answers you want. “You then shut the door, didn’t you?” is an example of this as opposed to asking, “And what happened then?”.

Ask only questions to which you know the answer
Do not be tempted to go on what is referred to as a “fishing expedition” or you may get more than you expected and the results may well be quite damaging to your case.

Listen very carefully to the witnesses answers
Listen to what is said in order to ascertain how far towards your final goal the witness’ evidence has taken you.

Don’t argue with the witness
Let the witness trap themselves. Once they have don’t question any further. Refer to the inconsistency with what they have said in cross examination in your summing up.

Do not allow a witness to repeat their evidence
Do not do this as this allows the court to hear the same evidence twice and may well have the unintended consequence of creating a false notion of credibility.

Never allow a witness to explain anything
This is especially true when the witness gives an answer that is useful to your case. If they give this sort of answer just stop your cross examination on that issue there in case they go on to explain things and destroy your advantage.

Avoid that one question too many
Once you’ve got what you want from a witness stop cross examination. If you keep going, you may elicit something favourable to your client’s case.

Save the ultimate point for your submission
If you have prepared properly, you’ll know what you want to elicit in cross examination before you start. Once you’ve got your results don’t embark on further cross examination. If you can find it (at your local or university law library) I recommend Professor Irving Younger’s The Ten Commandments of Cross Examination Video.

Rochelle Macredie is a Solicitor in NSW working with McKenzie Friends. She practices with the Sydney firm Oliveri Attorneys and can be contacted on 02 9550 0853, 0407 896 832 or by email at rochellelawyer@gmail.com

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!