Golden Rules when representing yourself. Part 8B

Part 8B on…

THE GOLDEN RULES OF LITIGATION

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 8B…

THE DOs

8. GET RID OF YOUR EMOTION

B. Dealing with it.

When you’re getting the claim, lawyer letters, applications, and affidavits…

The first rule is don’t panic.

The next rule is the same as the first. Calm down.

If you’ve started taking care of yourself as outlined in the previous post, then this will be easier to do.

In all things, there’s cause and effect.
Drop a pebble in a pond — CAUSE and you get ripples — EFFECT. Simple.

This has everything to do with you, because deep down, automatically or not, you choose to be cause or effect. When you feel: anger, under attack, guilt, grief, or apathy, you’re being affected by your ex’s cause. She is causing these in you, and again automatically or not, you are agreeing with it.

You don’t have to.

You really don’t.

Everything she writes, everything she says is done to manipulate you into reacting in ways that work for her in court and for her status among your family and friends. She is always the victim and you are always the evil one.

Here’s the lawyers point of view about all of this:

“There’s no point taking this claim personally. Really, it is just business. Whether it’s family law, an insurance claim, neighbourhood dispute or some other civil matter, it is just the business of people adjusting their legal entitlements against one another.”

“Being angry or upset about it isn’t productive. It will damage your ability to fight the claim systematically.”

So what to do?

First GO BACK AND DO THE STEPS IN “GETTING YOURSELF IN ORDER”. This really is that important. You will get your emotions under control by doing these steps.

Second if you’re feeling bad about things you’ve done, find a priest or a friendly neighbourhood bartender and ‘fess up. Priest is better legally; priest – penitent confidentiality. Hell write it all out in an email and send it to me and I’ll forgive you, your sins. Just get it off your chest in a way that can’t be dragged into court.

This means, by the way, DO NOT TALK TO PSYCHOLOGISTS, PSYCHIATRISTS OR YOUR GP ABOUT YOUR FEELINGS. They can only help you if they give you a “diagnosis” as in mental illness diagnosis which will be recorded, which can and WILL be subpoenaed by your ex to prove you’re bat-shit crazy and dangerous and she needs sole parental responsibility, etc.

Join Dads in Distress or other group where they get together. Call Mensline Australia on 1300 789 978 (24 hours a day). Just make sure it’s all informal and no professional records are being kept.

Then decide that whatever is in the affidavits or whatever shaming language she uses to you or about you, is really just manipulative BS and don’t engage.

Simply disagree.

When you disagree, you become the cause side of things again. eg. Ex: “You’re a lousy husband and father. Your children hate you. You’re no good in bed. etc. etc. etc.” You: “I disagree.”

Indifference to all of it allows you to examine it for the lies, misdirections, half-truths and (legally) objectionable comments and tear them apart line by line, sentence by sentence and find the evidence to do so.

This is what will help you win in court. Positive emotions when discussing your children and their future, NO emotion when dealing with your ex, her lawyers or anyone else connected to her party.

So, this means:

At all times conduct yourself with civility to all and consideration to the non-combatants.

Lawyers like to think this helps maintain an environment of respect between the parties and also respect for the legal system that you’re using to resolve your dispute. It doesn’t, because they don’t. Sticking pins in you when nobody is looking is their favourite pastime.

Treat your opponent and their lawyer professionally and politely. Again indifference is key. High stakes poker face.

Very little is ever gained using hostility, and much can be achieved using tact. So don’t interrupt them while they’re speaking, don’t be provoked if they’re nasty, refer to them pleasantly, and consider their ideas carefully while at the same time pursuing your competing goal.

This professional approach can help your case in several ways.

It short-circuits attempts to get you off-guard and then anger, intimidate, manipulate or bulldoze you into a position you aren’t prepared for. And by not buying into trouble you avoid being sidetracked. It gets rid of unproductive emotion and keeps the hearing on track towards a workable outcome. It saves valuable hearing time.

Behaving well helps keep you focused. Why? Because being professional is being cause and that will have a big effect on your ex, and her lawyer and can sway the judge to listen to your arguments.

Rule two of our Fight Club, the McKenzie Friends Club: Be cause, not effect.

Golden Rules when representing yourself. Part 8A

Part 8A on…

THE GOLDEN RULES OF LITIGATION

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…

THE DOs

8A. GET RID OF YOUR EMOTION

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.

Time to join Fight Club.

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.

Rule One of our Fight Club, the McKenzie Friends Club: Take care of yourself.

Section 2 to follow…

An astounding plea for sanity from the family court bench

I was looking for some case decisions on custody, when I came across this:

http://www.torontosun.com/2016/03/09/judge-blasts-warring-parents-who-squandered-500000-on-custody-battle

The father tried being reasonable, offered a number of settlements and compromises, all rejected by the mother. Her behaviour went severely downhill. She was trying to take the child away from him to hurt him.

Luckily, the judge saw through it and the rulings were fantastic. The first ruling awarded the child to the dad with sole parental rights and the second awarded the dad with nearly $200,000 court costs from the mother.

This is a landmark victory in Canada because the judge ruled that the woman was being unreasonable and awarded full custody to the man.

Both judgments can used to bolster your Australian case precedents for your case.

Read the article for yourself, and let me know what you think!

Golden Rules when representing yourself. Part 7

Part 7 on…

THE GOLDEN RULES OF LITIGATION

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 7…

THE DOs

7. KNOW HOW THE LAW APPLIES TO THE FACTS

This is a 2 part idea. Positive and negative. THIS IS YOUR CASE. This is who you call as a witness and who you don’t. This is what you ask your witnesses and what you cross-examine your ex’s about.

You have your application for parenting orders (either as applicant or respondent), all your documents, videos, affidavits, and witnesses there. How does the law apply to all that. Or more accurately where does your application and all evidence fit to the law to prove your application, to answer every single question / point of law that the Judge must consider?

How does the facts (both good and bad) show the judge that your parenting order answers these points better than your ex’s parenting order does?

A Quick tip.
Write a closing argument first, showing how everything in your case proves, your parenting application answers the sections in Part VII — Children.

List out every witness and what they’re going to say, as if they said it, every video, recording, document, receipt, parenting course certificate, birthday and fathers day card, under each section showing how they prove those key points / questions. List out what you have from your ex or what you think she will try to bring as evidence to prove her application under these sections.

Look it over. You have the facts. You have the law. You have the facts answering each section of the law.

Can Part VII — Children (the law) be used in your favour?

If yes, you have your case and you can win. Not easily. Never easily. But, you can win.

Want to know more? Join the club.

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 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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