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Common Mistakes in Family Law Litigation

There are common mistakes made during family law litigation. This article outlines some of them.

Involving children in the dispute

In parenting matters, 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. Entrenching a child in the issues of a family dispute can be damaging for the child.

Involving a child in the dispute unnecessarily can also have consequences for 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 into the child’s best interests.

Non-disclosure of property

A common mistake made in property matters is the non-disclosure of 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 often prevents a matter from being resolved during the pre-action procedures. The inference drawn about a non-disclosing party is that they have something to hide, that they have the potential to be dishonest and as a result, they are not likely to be considered a credible witness.

Making an offer to settle

During the pre-action procedures, 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.

Use of social media

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 such as Facebook. This is a contravention of section 121 of the Family Law Act 1975. 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 vent about court proceedings on Facebook, 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.

It is advisable to deactivate all social media profiles until after the family law matter is complete in order to avoid this common pitfall.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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