HOW TO WIN YOUR FAMILY COURT BATTLE
featuring THE KAPOK TREE and SUN TZU

You know regularly I’m told by mums and dads ready to pursue each other in the Federal Circuit and Family Courts that they will do whatever is needed and fight for however long it takes to win their matter. Certainly sounds like quite a battle they’re envisaging, one that will need all their strength and most probably all their money.

And really it is a fair mindset to have when your “worser half” won’t negotiate or come to fair and reasonable agreements on matters like parenting and finances before court proceedings are contemplated. Separation and divorce often leave a trail of acrimony at the end of matrimony.
That’s hardly a good environment for reasonable negotiations or successful mediations.

Unfortunately, it’s all part of the mixed up process that the family law rule making gods have decided on – you must try mediation before you can apply to the court for orders. That pre-court mediation normally never works, people are just too hot under the collar.

So most parties front up at court rather angry with each other with demands and agendas that are self centred and partisan. Demanding applications are met with equally demanding responses from the other side. Everyone, including the lawyers, present with a tough thorny exterior that resembles the Aussie Kapok tree.

And here is my local Kapok tree and it’s about to teach all of you hard as nails new litigants a lesson on court strategy.

You see for eleven months of the year the Kapok is a rather unfriendly looking tree covered in thorns and not very compelling to the local birds. Basically, the birds ignore it and the humans just look at it with aghast. How could a tree look so unattractive…I won’t be taking a selfie or showing any interest in this thing.

However, once a year at the beginning of Spring, the Kapok does something very breathtaking for one month, it produces the most beautifully enticing vermillion coloured flowers.

It sends a signal to all and sundry that it has transformed, is approachable, and importantly ready for business. The birds love it, the crowds love it and the selfies flourish. Yes everyone is paying attention to that rather clever chameleon, the Kapok.

So how do YOU want to present at the start of your court “battle”?

One of the greatest tacticians the world has ever known, Sun Tzu,  provides interesting lessons on how to win on the battlefield. None of them involve blaming someone or being overly defensive or refusing to negotiate. Let’s take a look at a few of Mr Sun’s pearls of wisdom:

“The wise warrior avoids the battle”.

The court gives both parties opportunities to undergo court appointed mediation if you haven’t worked out an agreement out prior to court – fail here and not only is there no guarantee of a win but a real certainty of a big legal bill. Barristers and lawyers in contested hearings ain’t cheap!

“He who is prudent and lies in wait for an enemy who is not, will be victorious.”

Having a fair and reasonable approach to something like parenting will be positively noted by the court. Demanding sole parental responsibility without grounds or seeking disproportionate property splits will not.

“Who wishes to fight must first count the cost”

Emotionally, physically and financially. Enough said.

“The supreme art of war is to subdue the enemy without fighting.”

Always have in your mind an idea of where to give ground, it helps the other party feel they are getting a win and they will usually reciprocate. Remember, you will never get everything you want.

Sun Tzu was very successful when it came to the battlefield because he rarely wasted energy on engaging in war.  In a way he was a tough thorny fella (like that Kapok tree) but he knew that the only way he would tempt anyone to deal with him would be to show a different side and offer an unexpected olive branch…or flower.

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Why do lawyers charge such exorbitant amounts in family law matters?
It’s a compelling question and one I get asked quite a bit.
With present day fees for even the most junior of lawyers starting at around $300 per hour and senior lawyers and partners charging amounts north of $500-600 dollars plus, it can be a financially crippling experience retaining any family lawyer.

And family law cases very often involve at least one party that is vulnerable both emotionally and financially, so the decision to use a lawyer is one that a client makes only because they need expertise and a speedy resolution …so they can avoid being left penniless.

However, penniless is often what hirers of lawyers become.
Going into debt and selling assets to keep large legal bills in check seems to be a regular occurrence and clients are always faced with the prospect of a lawyer bailing out if their gargantuan fees aren’t met.

Even though lawyers seldom share the mystery behind the high fees, they might try to explain those fees to you something like this…
Well, I sacrificed a great deal and did a lot of training to get to the position I am in today as an experienced family lawyer. Some may even use the title “accredited family law specialist” when speaking of such “experience”, even though that simply means a lawyer who’s been around for a while and sat for a short 3 hour accreditation test. (Sorry I had put the length of the test in as one newly minted specialist wasn’t happy with me referring to 3 hours as “short”. Go figure!) 

They might also put their fees down to their on-going requirement to attend costly continual professional development; their indemnity insurance (in case you sue them) and the renewal costs relating to their memberships and practicing certificates.

Additionally, when you walk into that lovely office with the friendly receptionist, the helpful paralegal and the shiny buttoned Chesterfield sofas, you can imagine that too adds to the price point!

But the hourly fee never includes all the “extras” that end up on your toilet roll length invoice. These often include the filing fees, the stationary costs, the postage, and the one that gives me a real laugh- the $4 a page photocopying. And don’t forget every cost, including the lawyers fee, attracts the 10% GST.

So is the product or service that you get worth the cost?

I truly believe in about 30% of matters, where there is a real complexity, difficult negotiations or large property settlements, it is.
As one commentator noted, when you sign a retainer agreement with your lawyer, you are assigning your worries and problems to them – so that you can go home, spend some time with your family and sleep peacefully in the knowledge that your lawyer has in fact ‘got this’.

Meanwhile, that really good lawyer is busting their ass stressing about your deadlines; completing all that tricky paperwork; writing your highly impressive affidavit with all your evidence neatly laid out the way the court requires it; dealing with your uncomfortable phone calls; and doing that negotiating on your behalf so your matter can be resolved.

And when your matter is highly complex and you’re out of your depth, they are worth every penny.

What about the other 70% of cases that I hear about day in day out? These are the people who often turn to me when their lawyer has not done much, or convinced them to fight a losing battle rather than negotiate, or been a poor communicator; or even worse, left them high and dry once the bills can’t be paid.
I have lost count of the people who have a poor impression of these members of my fraternity.

So what’s the best way to avoid the sky high fees? 


The two solutions that come to mind are: 
Fixed fee agreements
or… the most cost effective way-
Self representing with document/drafting assistance and court coaching like we do at The Legal Eagle.

Fixed fee agreements

These agreements mean you don’t have to worry about essentially signing a blank cheque for your lawyer to rack up billable hours. These types of agreements would generally be available for work such as preparing leases and legal wills, conveyancing and divorce applications.
There are various kinds of fixed fee arrangements, including where the client pays a lump sum up front, ‘staged’ payments at various points and ‘capped’ fees where there’s a guaranteed maximum total price for the whole case.
Lewis-Dermody recommends opting for a fixed fee agreement wherever possible, as lawyers can be under pressure from their employer to inflate clients’ bills due to the internal performance targets they’ve been set.
Self Representing
Most people have tremendous capacity to self represent with the right background help and assistance. It can be a little intimidating turning up to court but if all your documents and applications have been prepared by an experienced legal drafter you will feel pretty confident in court. You see getting the docs right is the key because these often relate to what you want from the court (your application and orders) and the evidence (your affidavit) you have to back that application up.
Good legal drafters also tend to be experienced lawyers, yet don’t charge nearly as much as a full service lawyer because they are not officially retained by a client to do court work and give extensive advice.
Finally, there are those cowboy (and girl) lawyers who offer deals that say “no win, no fee”. Seriously Eaglets, avoid these ones like the plague. They are only interested in sure wins and if you do reach their easy win criteria (and they resolve your matter) you will pay such a high percentage fee that they will be laughing all the way to the bank with YOUR settlement money.

Gosh… that’s a nice Chesterfield sofa! $$$$$$

Good solutions
If you need assistance and want to self represent, let us help you.
We take a genuine interest in the outcome you need… and our rates are very reasonable.
Our lawyer Mark has been helping self representers with their documents for over 6 years.
You can make a FREE appointment HERE or drop our wonderful lead paralegal Abbey a line – abbey@TheLegalEagle.com.au

There are so many unsolved mysteries that continue to baffle and bewilder humankind. Who was Jack the Ripper? Where is the lost city of Atlantis? Why was Stonehenge created? Oh and a favourite of mine, who framed Roger Rabbit? However, there is no more perplexing and exasperating mystery to unravel than…What exactly are the “best interests” of the child.

If you’ve been there, and I assume many of you have, you will time and time again hear lawyers, family consultants and Judges all espouse the same tired old mantra. The problem is that experience has taught me there is no real practical way to interpret what those best interests are.

As a consequence of this, much uncertainty prevails. But one thing is for certain and that is the “best interests” principle is to this day used to affect a wide variety of preferences about children’s custody. The fallout in applying this vague expression without clarity or consistency means that one parent often gets the sharp end of the stick. I can assure you these parents are often left gobsmacked by the court’s decisions.

How do you decipher what it means? 
Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself. Should a judge primarily be concerned with the child’s happiness? Or with the child’s spiritual and religious training? Or with their health? Or education? Or with the amount of interruption travel between parents may cause? So much to consider by Judges, all with different styles and opinions, often results in “dog’s breakfast” rulings and orders.

So what does the Family Law Act (FLA) say about “best interests”? Surely the legislation can point parents, lawyers and Judges in the right direction.
Well we know that the FLA requires the court to regard the best interests of the child as the paramount consideration when making parenting orders. And section 60CC of the FLA states that the primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

With regard to violence, the FLA also states that greater weight is given to keeping a child away from violence than having good co-parenting. The problem here is that there are often allegations made in affidavits by both mums and dads against each other in regards to physical and psychological violence towards the children. Deciphering these allegations causes much delay in working out what best parenting outcomes would be. In saying that, I am not against the court taking time to investigate but I am against allegations being used as a tactic by one party, with little evidence to back it up.

Real meaningful relationships involve both parents
So where there isn’t issues with violence, the court should be clear. A “meaningful” relationship with both of the parents should involve, where possible, co-parenting in the true meaning of the word. To be even clearer, where it is possible and circumstances permit, children should be spending considerable amounts of time with each parent every week.

Now some of you are saying, hang on that’s just not physically possible. I hear you, but children adapt to and like routine in their lives and if you both can negotiate a way to ensure reasonable time is spend with the non- primary carer parent by giving them overnights and part (and occasional full) weekends you will have a parenting plan with little opening for complaint. And if you both live near each other splitting weeks can also be doable with good planning and a routine. Children in most cases want to see both their parents, if they are denied that they face emotional health issues and the other parent faces ostracisation and most probably emotional health issues as well.

Additional ingredients and the child’s voice
The FLA, just to confuse parents even more, then lists all the additional considerations the court can (not must) take into consideration. Of these, the ones I feel are most important are a child’s right to express their views on parenting, with greater weight obviously being given to a teenager’s point of view than a 3 year old. For years I have advocated the child’s voice being heard and not through some report a family consultant does after a 20 minute observation session. I mean seriously, children are more articulate today than when I was as a kid. If you’ve got a 6 year old you know what I mean. In their own unique way they can express themselves very clearly. How we move forward in getting a proper forum for children to do this is another conversation.
The other additional consideration I really think is important as a best interests of the child factor is ensuring that child has contact with their extended family. So much love on offer here and from mostly partisan relatives who don’t carry the grudge factor parents sometimes have with each other.

Naturally, there are a lot of other well meaning additional considerations but they are additional and often overcrowd and turn into a mystery what those core “best interests of the children” should be about.
What we really need for simplicities sake is an agenda centred around great co-parenting and the preservation of contact with a child’s extended family. People may not stay as couples forever, but their children deserve a family for life.

If you are interested in my feelings on dodgy child consultants and ICLs click HERE

And for ideas on the “perfect parenting plan” click HERE.

At The Legal Eagle we have lots of free resources in family law please come and visit our very popular site.

DO YOU NEED HELP?
We also provide low cost assistance to self representers and people who have had enough of sky high legal bills.
You can make a free appointment to find out more HERE.