Tips for the self represented litigant in family law

With many people unable to afford legal fees in family law matters, there are more and more self represented people in the courts.

It can be daunting if you have never been in a court process to go to court, let alone stand up and represent yourself. Many people though do find they are forced into this situation from a financial point of view. Not being critical of lawyers, not many people have a spare two or three thousand dollars to pay a lawyer or barrister to appear on their behalf in family law proceedings, let alone the other thousands of dollars it costs to prepare documents. Financial reality leads to self representation.

If you find yourself in that situation you might appreciate some of these tips before your next (or possibly your first) court appearance.

•   Wear smart clothes. Ever heard of the saying ‘the clothes makes the man’? It is true. If you look good you will feel good and project a more positive image about yourself. Turning up in thongs and tracksuit pants will do nothing for you or your case. There is no need to go to the extremes of wearing a suit if you don’t feel comfortable in one. Smart clothes can be casual pants (even jeans as long as they are not full of holes) and a shirt. Taking care of your appearance when going to court lets the judge know you are taking your case serious.

•  Follow court etiquette. Firstly you turn your mobile phone off as soon as you get into court. Don’t turn it to silent, but turn it off. You should also follow directions like standing when the court officer tells people to stand and you should not be having a conversation with someone during court.

•  Remember to be courteous. The judge is there to do a job and his/her job will be easier if people are polite. If you feel you are not being listened to try saying what you have to say differently.

• Depending on what court you are appearing and what type of court event it is you should address the judge as Your Honour. If you are in a court event overseen by a Registrar, you will address them as Registrar. If you are not sure ask someone.

• Don’t interrupt the judge or the other side when they are speaking. You will get your turn.

• Try not to sneer, laugh or show other emotion when the other side is saying something you do not agree with. Practice passive facial expression before court.

• Try not to be too wordy. If the judge asks a question that can be answered with yes or no then do so.

•   Last but not least remember stay calm. If things don’t go your way you cannot/will not improve them by getting angry. Get legal advice if you think a decision has been made against you unfairly. There maybe appeal processes available to you.

This is by no means an exhaustive list and only meant as a guide to those who are contemplating going to court as a self represented litigant.

You should visit the family court website for more information or the federal circuit family law.

http://www.familycourt.gov.au

http://www.federalcircuitcourt.gov.au

http://www.familylawwebguide.com.au/srl-r/pg/start

Pre Nuptial Agreement - to have one or not to have one?

Is a pre nuptial agreement for you?

Thanks to the popular press reporting on the rich and famous, we all know what a pre-nuptial agreement is, more or less. A pre-nuptial agreement relates to a couple agreeing before they enter into a relationship how they are going to divide up the assets should the relationship break down. Some might argue this level of mistrust is not a good start to a relationship, whereas others, usually those with more money, simply see it as a way of ensuring their financial future.

In Australia these agreements are referred to as binding financial agreements (BFA). You can have a binding financial agreement before getting married, before starting to live together or when separated. It is critical that the BFA correctly identifies pursuant to which section the agreement is drafted. Not getting the section right can already lead to a court deciding the agreement is not valid.

When should you have a BFA

Be it over a glass of champagne, a romantic candlelit dinner or some other exquisite setting, the conversation about wanting your so called loved one to sign a BFA can be a bit of a love dampener. It is difficult to imagine how the subject could be broached delicately and tactfully.

‘Darling, you know how you are going to move into my million dollar mansion on Monday?’ He/she says caressing the back of the neck of the loved one. ‘Well would you mind just signing your rights away?’

All jokes aside, a BFA may be beneficial in the following situations:

1.     Both parties have been previously married/in a relationship and wish to protect their assets before merging their lives with another person.

2.     Both of you like the idea of setting out before hand how any property should be divided if it does not work out.

3.     One of you has children from a previous relationship and wants to make sure assets are protected for them.

4.     One party has a lot more assets than the other and wants to be sure both parties know what is to happen when the relationship breaks down.

What if I don’t sign the BFA?

It may be that the new love of your life will simply end the relationship if you refuse to sign the agreement. As the law stands the agreement will only be binding if both of you have received independent legal advice as to the advantages and disadvantages of the agreement prior to signing and you will need to sign the agreement voluntarily.

The conversation with respect to not signing the agreement will no doubt be as difficult as the one about signing the agreement. Love and relationships are about trust and faith; a BFA may spoil those aspects of a relationship, whereas others like the idea of knowing what the future holds.

Other options

There is no other option for setting out what is to happen with property before marrying or living together than a BFA. It may be that if you do not sign the agreement, the magic will be gone from the relationship and you find yourself stranded at the altar.

If you have separated and are confronted with a BFA you do have the option of what is known in legal terms as application for consent orders and minute of order.

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d904c3b27c0b/AppConsentOrders_Kit_070612_V1.pdf

The above link will provide you with information on this type of agreement.

Remember that whatever agreement you sign it will need to be done freely and without any form of coercion by the other party. An agreement that is signed after much pressure has been applied, may ultimately not be a binding agreement.

Leaving a violent relationship

Family Violence

The Family Law Act 1979 defines family violence as follows:

1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be
fearful.

2) Examples of behaviour that may constitute family violence include (but are not limited to):

            (a) an assault; or

            (b) a sexual assault or other sexually abusive behaviour; or

            © stalking; or

            (d) repeated derogatory taunts; or

            (e) intentionally damaging or destroying property; or

            (f) intentionally causing death or injury to an animal; or

(g) unreasonably
denying the family member the financial autonomy that he or she would otherwise
have had;

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his or her child, at a time when eh family member is
entirely or predominantly dependent on the person for financial support.

(i) preventing the family member from making or keeping connections with his or her family,
friends, or culture;

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html

(above link provides full definition of family violence)

Leaving a violent relationship

Separating from your partner can be difficult at the best of times, let alone separating from a partner who has perpetrated family violence on you, which can seem impossible to do.

Often people stay in violent relationships longer than is necessary because they cannot see a way out. The fear of the unknown is greater than the fear of the violence. Of course family violence
does not only have to be physical violence, as is evident from reading the definition section of the Family Law Act, and can take many forms, some more subtle than others.

Things to consider

An immediate concern might be where do you live and how do you support yourself (this is particularly so for people who have the care of the children). These considerations may take some time to work
out, but remember preparation is the key to a successful separation.  

Financial Assistance

Planning how you leave will be absolutely essential. Try and be as prepared as you can be. If you do not have access to joint funds see centrelink before you leave your partner to see if you are eligible for centrelink payments. You may be surprised to learn that you might also qualify for rent assistance or some other type of emergency payment. Broadly speaking financial assistance may be in the form of:

1.   
Crisis/emergency payments;

2.   
Single parent payments;

3.   
Income support payments;

4.   
Unemployment payments;

5.   
Rental assistance.

You are also entitled to make an application for spousal maintenance to the family court (federal circuit court - family law jurisdiction), particularly if your ex spouse is gainfully employed or runs his/her own business. Unfortunately this can be costly, but if you can demonstrate need and an ability to pay (by
your ex) your ex may also be liable for your legal fees. You should consult with a solicitor about a spousal maintenance application to discuss prospects of success.

Where to live

Once you have sorted out a means to support yourself (and possible the children), work out where you are going to live. This may largely depend on what you can afford. People do not like to be a burden on others so you may not like the option of living with friends or relatives. You should not dismiss it outright, particularly if it was a short term measure and provided you with the opportunity to move out sooner rather than later. If people offer to help you they do so willingly.

If you are having difficulty in getting a rental application approved do not be afraid to get a solicitor to provide a letter to an estate agent setting out your circumstance. Sometimes being honest can help secure a rental property.

What to take

Once you have a place to live make sure you pack essential things you want to take from the house. You may only have a small window of opportunity to get organized without your partner knowing what you are doing. Remember once you leave the home it is unlikely that you will return, so you will only get one chance to take as many things as you want. Make the most of it.

When deciding what to take be practical and remember things like financial documents, important papers and photos. Many a family law dispute includes one party wanting photos and the other not making them available.

Protecting yourself

If you are really worried about your safety you should consider an intervention order (apprehended domestic violence order in NSW) for your protection. The police can issue an emergency intervention order on your behalf for a short period of time until the first court date. At the mention date there may be a short hearing before the Magistrate will grant the intervention order pending final hearing (unless your ex simply consents to its making). A longer intervention order can be applied for at a final hearing.

Final words

The words of wisdom provided here will not cover all your questions about your particular situation. There are many organizations set up to help you, you just need to go and speak to them.

Don’t’ be afraid to get some legal advice.
If you cannot afford to pay a solicitor you could see a lawyer at one of the
many community legal centers. Dedicated and capable volunteer solicitors, who
will be able to provide you with advice with respect to your unique
circumstance, man these places.