Litigation - Common Mistakes People Make


The common mistakes to avoid in family law can be divided into the parenting and property aspects of a case.

In terms of parenting, it is unfortunately common for parents to involve their children in a matter unnecessarily. Involving children in the acrimony between parties to a family law matter is a big mistake. It does nothing to advance the interests or development of a child, quite the opposite actually. Entrenching a child in the issues of a family dispute could be quite damaging for the child. If that is not enough to deter this type of behaviour, consider the consequences to a party’s credibility before a Judge. Such conduct does not promote your parenting skills, nor does it convince a Judge that the Child’s best interests are being considered. Involving a child in the dispute, by speaking badly about the other parent or the other parent’s family to the child or telling the child about the areas of dispute between the parents are an indication of lack of insight as to the child’s best interests. Simply put, it is wrong and has no benefit in family law matters.

Speaking of credibility, the second pitfall that comes to mind in family law is non-disclosure in property or financial proceedings. Non-disclosure of financial circumstances can shatter a party’s credibility before the Court. It is not only against the law not to disclose your financial circumstances, but failure to disclose also makes it difficult, if not impossible, to redeem oneself in the eyes of the Court and often prevents a matter from being resolved during the pre-action procedures. The inference against a non-disclosing party is that they have something to hide, which implies they have the potential to be dishonest and are not likely to be considered as credible witnesses.

During the pre-action procedures, which is the process undertaken prior commencing Court proceedings where disclosure documents and offers of settlement are exchanged, one person may be inclined to make an offer of settlement. In doing so, the person making the offer exposes their best offer without prefacing it with the words, ‘without prejudice save as to costs’. These words basically mean that the offer cannot be used against the person making the offer in Court except in an application for legal costs. Forgetting to preface an offer with the words ‘without prejudice save as to costs’ is a common mistake that people make in family law, and possibly in other legal disputes.

Also a matter of evidence is the common modern day use of social media communication in family law matters. A mistake that is common in both parenting and property matters is the publication of information about court proceedings, or about a party to Court proceedings, in a public forum in contravention of Section 121 of the family Law Act. This section makes it an offence to publish information which could identify someone involved in a Family Law matter being determined by the Court. It is all too easy to post a complaint on a Facebook timeline about the latest annoying thing a former partner has done, or Tweet about the latest decision of the Court in your case, and few people know that this is not only illegal but also a strategic disaster for a family law matter. Depending on one’s level of self-control, it may be best to deactivate all social media profiles until after the family law matter is complete in order to avoid this common pitfall.

If you are wondering how best to conduct yourself during your case and avoid the common mistakes made in family law matters, contact us for an obligation-free first conference with one of our experienced family lawyers.

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