Witnesses are not allowed to hear the testimony of earlier witnesses.
If you can get your McKenzie Friend on the stand as the first witness at the beginning of the trial, then after he’s been excused, you can get his help as a McKenzie Friend. If your McKenzie Friend is there while any other witness is being examined, then no he won’t be able to be called to give evidence.
Part 8A on…
Remember, 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.
So with that in mind, here’s number 8A…
Confusion. Anger. Under attack. Guilt. Grief. Apathy.
You are actually being persecuted. And they are using all of your emotions against you to make you give up.
So, what to do?
First, realise that what you’re feeling, intense though it may be, is normal human emotion and reaction. You’re not mentally ill. You’re not going crazy. And most important of all, YOU ARE NOT DEPRESSED. You are not a Beyond Blue basket case.
By that I mean, give yourself a set LITTLE time to wallow in self-pity and learned helplessness. Kind of like a mini vacation. A weekend; a week if you have to. Get it out of your system.
Okay. Next: Getting yourself and particularly your emotional self back in order.
Starting tomorrow (for those of us who have gone on too long in the mini vacation above) get up at dawn (around 5:30 or 6:00 am).
Get dressed and go for a walk — half hour out, half hour back. This is not really physical exercise, so you don’t have to push it. Pick a different direction each day.
While you’re walking, take the time to really notice your environment, trees, lawns, buildings, birds, clouds, sky, everything. For a variation, look at something big (tree, house, car, building) then look at something small (leaf, pebble, insect, etc).
Do that every day for at least 2 weeks. You’ll feel a hell of a lot better.
Now sort out your diet. Get some vitamins. If you’re up for it, go lift weights, but work out some exercise. Again you’ll feel a hell of a lot better and back in control.
Section 2 to follow…
Part 6 on…
Remember, success in any litigation including your case in the Family Court depends on three things: the facts, the law and the presentation; that is:
So with that in mind, here’s number 6…
The Family Law Act 1975 (Cth) Part VII — Children must become your bible.
A quick history lesson on the Act:
The law in relation to parental responsibility was changed by the Family Law Reform Act 1995 (Cth) (“FLRA”). This Act replaced part VII of the Family Law Act 1975 (Cth) (“FLA”) and changed the terminology that is to be used when dealing with children’s matters from “guardianship”, “custody” and “access” to “specific issues”, “residence” and “contact”. It also introduced the terms “parenting orders” and “parental responsibility”.
The FLA has most recently been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“FLASPRA”), which commenced operation on 1 July 2006. This amending Act changes the terms “residence” and “contact” to become “living with”, “spending time” and “communicating with” and attempts to send out strong messages, particularly in relation to shared parenting after separation, except of course the judges aren’t listening.
So you must know the sections in Part VII — Children:
Section 60CC How a court determines what is in a child’s best interests.
This is the blueprint for your application. It must answer every one of these points, positive for you and failures of your ex.
Section 61B Meaning of parental responsibility.
This DOES NOT mean equal time. It means equal decision making for major long term decisions, like no allowing the drugging of your son because he’s a defective girl in school who won’t sit still, ah, I mean he is mentally ill with ADHD [NOT!]. Or schooling, or religion, or other medical situations like operations and such.
Section 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.
This is the section that deals with time spent with your children. These two sections are the questions that have to be answered in the best interests of your child in your application.
Read through the entire Part VII — Children. You’ll get an understanding of what you have to answer, but I warn you, it’s a horror story.
Also the Family Court site has a lot of this is simpler English. Read these first. Then tackle the Act.
And remember, parenting first, then financial. If you don’t have an agreement over shared parenting, drag your heels over the finances / assets negotiations. (Don’t say no outright. No ultimatums. Just slow things down.) Time is the great leveler in any negotiations.
Want to know more? Join the club. 3 Day trial membership for just $2.
Part 5 on…
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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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.)
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:
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!
