Tag: rules of evidence

Golden Rules when representing yourself. Part 6

Part 6 on…

THE GOLDEN RULES OF LITIGATION

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:

  1. how strong and reliable your evidence is to prove 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 6…

THE DOs

6. KNOW THE LAW

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.

mckenzie friends judge don't care not 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.

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.

Want to know more? Join the club!

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…

Want more? Join the Club!

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…

Want more? Join the Club.

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 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!