Common Mistakes in Family Law Litigation
Below are some common mistakes parties make during family law litigation.
Involving children in the dispute
Involving children in the dispute between parties to a family law matter is a serious mistake. It does not assist the resolution of the dispute and can be harmful to a child’s emotional well-being, sense of security and development. to advance the interests or development of a child. When children are entrenched in parental conflict, it can cause them anxiety, confusion and long-term damage to one or both parents.
Some examples of involving children in the dispute may include:
- Speaking negatively about the other parent or their family in the presence or hearing of the children;
- Discussing the dispute with the children;
- Asking the children to pass messages between parents; or
- Encouraging them to take sides or “go against” the other parent.
Involving children in the dispute can also have negative consequences in Court. The court require parents to prioritise, and act in the best interests of their children. A parent who involves their child in a dispute may be viewed as lacking insight into their child’s welfare.
Non-disclosure in property matters
Parties have an obligation to provide full and frank disclosure of their financial circumstances. This means disclosing all relevant information about assets, liabilities, income, expenses, superannuation, trusts, companies, and any other financial interests or resources. This obligation is ongoing and is a requirement from the moment parties begin discussing a property settlement, until the matter is resolved.
Failure to properly disclose financial information can create significant difficulties in resolving a matter. Without accurate disclosure, it is often not possible for parties to meaningfully negotiate or participate in pre-action procedures aimed at reaching an early settlement. Non-disclosure can also lead to delays, increased legal costs, and unnecessary litigation.
Non-disclosure can also affect how a party is viewed by the court. If a party does not provide proper disclosure, the court may question the reliability of their evidence and draw adverse inferences about their financial circumstances. It may also result in court orders being made on the basis of incomplete information, or existing orders being challenged later if material information was withheld.
Providing timely and complete disclosure from the outset places parties in the best position to negotiate fairly, narrow the issues in dispute, and work toward a resolution.
Making an offer to settle
Settlement offers can be an effective way to narrow issues, encourage negotiation, and avoid the time and cost of litigation.
When making an offer, you should clearly state that it is made “without prejudice save as to costs.” These words are important because they generally mean the offer cannot be relied upon in court as evidence, except when the court is considering questions of legal costs.
Properly prepared settlement offers can be a valuable strategic tool. They may demonstrate a genuine willingness to resolve the dispute and, if later rejected unreasonably, can sometimes be relevant to a costs application.
For that reason, parties should consider obtaining legal advice before making or responding to settlement offers, to ensure the offer is appropriately drafted and protects their position.
Use of social media
The use of social media can create unnecessary problems in family law matters.
Posts made on platforms such as Facebook, Instagram, X, TikTok or other public forums can quickly become relevant to a case and may be used as evidence in court.
A common mistake is posting about the proceedings, the other party, or the issues in dispute. In some circumstances, publishing information that identifies a person involved in family law proceedings breaches legislation, which restricts the publication of identifying details in matters before the court.
Even where a post does not breach the law, it can still damage a party’s case. Social media content may be relied upon to challenge credibility, parenting capacity, lifestyle claims, financial circumstances, or compliance with court orders.
For these reasons, parties involved in family law matters should exercise caution when using social media. It is often sensible to avoid discussing the case online, review privacy settings, and think carefully before posting any content while proceedings are on foot.
Obtaining legal advice early can help ensure that online activity does not unintentionally affect your position in a family law matter.
