This month Ben and Heather discuss how to get ready for Court. Their first piece of advice is to avoid bringing family law disputes to Court if at all possible. But in the event that you do have to go to Court this podcast will help you prepare, as Ben and Heather consider the following:
This podcast references several past podcasts which may be helpful in understanding Court processes.
E29: New Court. New Rules – this episode reviews the new Family Court rules that came into effect in September 2021.
E13: Property Valuation – this episode features Ken Potter from Herron Todd White on valuing real estate and Glenn Aylward from Aylward Auctioneering on valuing household contents.
E35: Forensic Accounting: Valuing Businesses in Family Law – this episode features forensic accountant Suzanne Delbridge on the process of valuing a business for the purposes of a family law matter.
E20: Judge Judy Talking Family Law – this episode features retired Federal Circuit Court Judge Judy Small, who (amongst other things) provides advice to anyone entering the family law system for the first time.
E15: What is the Judge Thinking – this episode features former Family Court judge, The Honourable Rodney K Burr with a unique insight into how a judge comes to a decision.
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Benjamin Bryant: Welcome back to the Family Matters Show podcast. I’m your host, Benjamin Bryant, and I’m here in our office recording studio with my partner in Crime Heather McKinnon to record Episode 36. Now the big news that after a string of episodes featuring experts from around the state and the world, it’s just back to me and Heather for this one. I’m kind of excited for that. What about you, Heather?
Heather McKinnon: Oh, me too. It’s sort of like going on a tightrope. We haven’t got any big person in the space.
Benjamin Bryant: Yes, indeed. But the subject we’re going to talk about is not all that cosy and comfortable. Today, we’ll be discussing how to get ready for court. Heather, I know that you and I would prefer it if none of our clients had to end up in court. But sadly, sometimes agreements just can’t be reached and a judge needs to get involved.
Heather McKinnon: That’s right Ben and if you want things to go your way in court, you really need to be prepared.
Benjamin Bryant: Absolutely right. So today we’re going to talk about exactly that, how to prepare yourself for court.
Benjamin Bryant: Now, before we get started, I wanted to do my usual little reminder to listeners. Please share this show with friends and family who are starting down the path of separation or divorce. You will be doing them a huge favour. There’s a growing library of podcasts to help on a wide range of subjects, and obviously if you know someone that might be going to court, please do share this episode to help them get ready. Now onto the show. Are you ready, Heather?
Heather McKinnon: You bet.
Benjamin Bryant: Let’s start with a quick chat about what happens before we even start thinking about court. Heather, what hoops do you have to jump through before a matter even reaches the Family Court? And why does the system make it so difficult?
Heather McKinnon: Well Ben, what we know is that separation is one of the most stressful events in life. So, the psychs tell us, other than death or buying a house, probably separation tops the list. So, when humans go through something as painful as a separation, they’ll often be in what we call flight and fight mode. So, they’ll either want to put their head in the sand and hope it all goes away or they’ll be really on the front foot, want everything fixed now and be very energetic about putting everything behind them and fixing it. So, the problem we have as family lawyers is if we have clients in either of those states, it’s going to be very difficult to get them to think calmly and rationally about their future. So, over the sort of 40 or 50 years since no fault divorce came in, we’ve really identified that if we can get people to slow down, calm down and try and communicate with each other in a way that doesn’t exacerbate that flight mode, we’ve got a better chance of settlement. So initially what we had available to us were things like counselling, which were, you know, all in the social science field. But now the lawyers over decades have joined the bandwagon and we have alternative methods of resolving disputes and the most common one would be mediation. So we now have legislated that because it’s so successful. What we say is, if you have separated and you’ve got an argument going on about either arrangements for your children or how you’re going to sort out your property, we want you to mediate first. We don’t want you to come to a judge. We want you two to solve your own lives. So mediation is mandated. And that’s why when you come to see us, we will be talking to you about staying away from us initially and using other people who are better trained to calm everything and get that sort of flight and fight out of you.
Benjamin Bryant: And Heather, I know that in episode 29 we discussed the new court and new rules that came into effect on the 1st of September last year, being 2021. And previously, of course, that mandated mediation or family dispute resolution was just in respect to parenting matters, children’s matters. But of course, now the court is encouraging parties to do it for the property matters as well. And there’s also some examples where the court doesn’t make people jump through those hoops. For example, divorce. You don’t need to do mediation for a divorce, but to address the fight or flight mode, of course, there’s a 12-month period of separation. But if you have a consent order, you also would not need to do mediation. And also there are some exceptions to the mediation rule, and that is if there’s extreme family violence or pretty nasty allegations. But I think there’s fair to say that there’s a huge push from the court to try and get people to use alternative means to reach a decision. Absolutely.
Heather McKinnon: Yeah. I think you and I would say court’s a real blunt instrument. And so, I know people who say, “Gutless wonders. What do you keep making us do this stuff for?” We’re not gutless. We just know that it’s better for you if you can stay away from the court system.
Benjamin Bryant: And I think in terms of the stats, it was what, 3% or something of people actually need the judge at the end of the day.
Benjamin Bryant: Heather, if your case gets to a point where you have to go to court, what court will actually hear your proceeding and assuming you’re in Coffs Harbour, where is the court located?
Heather McKinnon: Okay, well that could be a good question after today. We’ve got a meeting today with the Chief Justice who’s travelled to the north coast. And certainly Coffs Harbour is one of the, regional growth centres, but at the moment if you have a family law case going ahead and you’re anywhere from say Kempsey through to Yamba out to Dorrigo or Glen Innes, your matter will be heard by a judge coming to Coffs from Brisbane and you’ll be borrowing the local courthouse. So the local courthouse is funded by the State Government and we’re a Federal Court. So at the moment we squat for the week that the judge is here in that building that was built in Coffs a few years ago. If you start a case, you will start in what we call Division Two of the Federal Circuit Court, which is where most cases are heard. There’s a Division One of the Family Court. Those matters are ones where there’s complex issues like allegations of child sexual abuse or property pools in the multi-million stratosphere where there’s complex issues. But otherwise, for most people, you’ll be a Division Two case and you’ll be coming over to the local courthouse with us when the judge is going to hear matter.
Benjamin Bryant: Heather, are proceedings being heard online these days or do you still need to physically attend court?
Heather McKinnon: So the bulk of our work has shifted to online proceedings. So for those people that are listening that are already involved, you’ll know that nearly every court appearance happens on the computer. The only cases that are running face to face, are if you’re in that 3% that are, at the pointy end. But even then, at any tick of the clock it can change. I was an Independent Children’s Lawyer in a trial in Sydney on Monday and last week they shut the court in Sydney because this current outbreak means that it was too risky and so the trial at the last minute went back to computer. So it’s changing every day depending on where the infection rates are up to. And it’s fair to say, though, that if you’re having anything happen in the court that’s not a final hearing. It’ll be on the computer.
Benjamin Bryant: And if the proceedings are on the computer, as you say, can the parties attend from their home?
Heather McKinnon: Yes, they can. As we’ve said Ben, we have clients all around Australia. In fact, at any one time we’ve got a number of clients who are residing overseas. So, what happens is when a case comes on, every participant is given a code to dial in, on a platform the court uses called Microsoft Teams. Once you have that link, you can be anywhere around the world where there’s Internet and you just log in. So, at the moment I’ve got clients in New Zealand, Canada, America. You’d have similar situations and all of those clients are coming in to the court case just through that platform.
Benjamin Bryant: And what are your tips, Heather, on what to wear and how to behave in a courtroom? And does that change between online or in the physical courtroom?
Heather McKinnon: Look, I’m one of those people that always gets into trouble for what I wear in court, let alone the client. My attitude from early on in practice is that you should be respectful and come to court in a business-like way. I think that it’s horses for courses. We live in a really poverty-stricken area and I’m not one for formal dressing that puts you so far removed from the client that it adds to their stress. I mean, it is one of those things where you need to be comfortable, but I don’t think it’s appropriate for someone who never wears a suit and tie to wear a suit and tie. An open shirt, neat clothes, shoes…will help. I think it’s more about you feeling relaxed and comfortable because if you do have to go into that environment, it will be one of the most stressful things you’ve ever done.
Benjamin Bryant: And the tips that I can give our listeners, Heather essentially is in the physical courtroom you do have that court etiquette. You do have to bow when you enter and bow when you leave. If the judge is sitting, you’ve got to make sure your phones are off. You can’t have water bottles and food and different things in the courtroom. There’s all that type of etiquette. But I think there’s a same etiquette that is required online that you and I just know. Each registrar or judge runs a list differently, but if you’re online, a lot of them, you do not put your video on. You have to be muted at all times unless you’re being spoken to. And you have to follow those rules, because if you don’t follow those rules, you could be on the wrong side of the judicial officer before your matter is even heard. So it’s really important that if you’re doing it online, either doing it with your lawyer or if you’re doing it from home, that you are aware of how to use the software and you ask those questions, you know when to make yourself appear on video, when you can be muted, when not to be, what their role actually is in the proceedings. And of course, that changes if you’re self-represented or not.
Heather McKinnon: And I think it is really important to let your lawyer know if you have particular needs. So, for clients who, for example, have an anxiety disorder, we often prepare them by getting them to come in and watch a hearing online or to come with us to court and watch barristers in a case that’s not theirs. So, they’re not coming in cold. That they’ve actually experienced what it’s going to be like. And it is something that I have found over the years really settles people. The Family Court is not a closed court. It is open and any member of the public can come and watch. So one of the things that I would encourage people to do is, if it looks like you are going to have to give evidence in a witness box, and this applies whatever the court is, ask the lawyer that’s helping you: can you go and watch a case so you know what’s ahead of you?
Benjamin Bryant: Absolutely. That’s some great tips. And Heather, if your case is going to court, will you have to hire a barrister or can your family lawyer handle everything for you? We probably need to start off with the difference between a barrister and a lawyer. If there’s a difference between a lawyer and a solicitor.
Heather McKinnon: It’s again one of those things that’s hard for everyone to understand. So in Australia, when you go to university and do a law degree and you graduate with your degree, you’re a lawyer. That doesn’t give you any right to practise as a solicitor or a barrister. Once you become a lawyer, that’s the first hurdle and then you have to elect in New South Wales whether you’re going to go on to the role of solicitors or barrister. What traditionally happens is you leave university, you start work as a solicitor, and then if you become particularly interested in court work, at about ten years post university, you cease being a solicitor and you become a barrister. It’s analogous to the sorts of things that we see in medicine. So for example, a solicitor is similar to a general practitioner. They see all cases at the beginning. Some general practitioners who are experienced will do minor surgery. So they might be removing skin cancers, doing procedures which are within their skills group. But then when things get really tricky, your GP will refer you to a specialist. When we have cases that get serious, we bring in the barristers. Barristers spend all their time only working on court matters and they are skilled at cross examination, which takes years to master. All lawyers have the potential to do that, but it’s something that is very specific in its skill base, and it’s certainly our preference that if you get to the serious end of the 3%, we will say to you, you do need a barrister. As you know Ben, you and I do a lot of court work and we will run a lot of early proceedings, interim hearings, but it’s very rare that we would run a final hearing.
Benjamin Bryant: Well, GPs and specialists. That sounds expensive, Heather. How much is it likely to cost to take a case to court?
Heather McKinnon: So you hear all sorts of horror stories. But in a regional area, the preparation costs for a hearing are usually between $10 and 20,000, depending on how much money has to be spent with experts like valuers. Once you hit the courtroom in regional New South Wales, you’ll find that your solicitor will charge probably $3 to 5000 a day to be in court with the barrister. Barristers’ fees at the moment range from about $5000 a day. If you’re involved in a case that’s really complex and you have to get a senior counsel, they’re sitting at around $12 to 15000 a day. So, you can see that it’s very easy to spend $50 to 100,000 if you’re in a case that has to go that far. Obviously, we’ve done other shows on Legal Aid and how things like that work, but certainly in our practice cases that go to final hearing, people will spend between sort of $40 and 100,000, depending on the complexity.
Benjamin Bryant: Hence why the court is pushing for alternative dispute resolution.
Heather McKinnon: Exactly.
Benjamin Bryant: And Heather, we’ve spoken now about how clients or parties can prepare for court. What does a lawyer and a barrister do to make sure they’re prepared for court?
Heather McKinnon: For those who are interested in that sort of pointy end, it all revolves around the rules of evidence. And in the Westminster system that’s been developed over centuries, lawyers around the Western world have developed sets of rules on how evidence gets presented in a case. So why we’re bringing in barristers is that those rules of evidence are complex and you have to be really trained in how to get certain evidence in before a judge. So, for example, in a children’s matter, we’ll be looking at trying to assess parental capacity by looking at things like the history recorded in government documents, mental health records, criminal justice records, whether people have had incidences in their workplace that indicate they’ve got anger management problems. So that sort of evidence is what we concentrate on in the preparation period and also what the barrister does at trial in making sure that they comply with the rules of evidence and they can tender and get it into evidence. So the judge gets the full background on the case.
Benjamin Bryant: And a deceptively simple question, Heather. There’s actually a couple of them. But when we’re at court, how does the court decide who a child will live with or spend time with? And at what stage in the process is the court doing that?
Heather McKinnon: So we’ve talked a lot in other programs about expert evidence in children’s matters. So in a judge’s weighing up, they’ve really got three major pieces of information. What does the court appointed expert say? So that’s a really comprehensive document with a lot of power in proceedings. But the most important thing the judge will be doing is assessing parents in the witness box. And this is something that you can’t explain to anyone unless they’ve been in there. The witness box in our system of law is like putting someone under a spotlight. That skill of the cross-examiner, the barrister who is going to have you in that box, is to show your true character. And all the words in the universe can’t take away from what a barrister is able to reveal in someone’s character in the box. So an easy case will be a father with anger management. A skilled cross-examiner within half a day will get them to lose their temper. Somebody who is masking behaviours that have not been really looked at closely will, after a day or so of cross-examination by a skilled person, start to reveal flaws. It’s a mystical process in one sense, but it works and you have to see it to believe it.
Benjamin Bryant: And of course, what the court’s doing in parenting matters at all stages in the proceedings is promoting the children’s best interests. And we all know that. We’ve done, plenty of podcast episodes on determining or assessing what’s in a child’s best interest.
Benjamin Bryant: What about property settlements, Heather?
Heather McKinnon: So property settlements, again, there’s this complex lead in in the 3% that go to trial of gathering the information the judge needs. What are the assets for division? What are the value of those assets? What’s the history of contribution? What do both spouses require for their future going forward? So we have this very logical approach and our job is to make sure that the judge has all the information required for that four step approach. So, you can listen to people on other episodes about how we value property, how we value chattels, how we value businesses. So again, it’s logical, well-established jurisprudence over decades where we have a method by which we can, help the judge in an orderly way make a final determination.
Benjamin Bryant: That’s right. And Heather, I think episode 13 was the real property valuations and episode 35 of our podcast was the valuing of the business with forensic accountant, I think Susan Delbridge it was. Heather, in terms of the property settlement, again, I think it’s important to just manage our listeners expectations. As you mentioned, the four-step process is essentially: 1/ what is up for grabs? 2/ How did it get there- who contributed to what? 3/ Looking forward to the future needs of each of the parties and 4/ the fairness test, if we can call it that. And a lot of people think that’s pretty straightforward and it is. But where the difficulty or the conflict comes is, for example, there might have been inheritance received. So then we have to have an argument about contributions. What does that mean? It might be that the mother is the primary carer for the children and they’re really young. So on a future needs adjustment what should that be? Parties often come to us and say we’ve agreed to 50:50. So there’s the contributions and the future needs done. Excellent. But the question is 50:50 of what? They don’t agree to the asset pool they’re stuck at step one. So again, a court is always looking at a just and equitable or fair property settlement. But like you mentioned in the parenting stuff, it’s about getting all the external information before the court before it can make a determination if you’re one of the 3%.
Benjamin Bryant: And Heather finally, if you don’t like the court’s decision, can you appeal?
Heather McKinnon: You can if you want to get beaten about the head again. You know, I think in 40 years Ben I’ve probably had ten appeals, if that. Again, you really rely on barristers, but you even go further. You get barristers who are skilled in appeals to tell you whether to pour more money after it. It’s Russian roulette once you get to that stage.
Benjamin Bryant: And the more money is substantial.
Heather McKinnon: Oh, yeah. I mean, we’re in one at the moment that, I can’t even fathom that level of legal fees, but it’s been going for years and I think we’re on the third appeal. So there are times where there are hard, hard legal issues and the court’s there for that reason. And, we’ll talk to you if a judgement goes bad about the options. But I think people should know it’s a very rare event which would make a case appealable. Especially in regional areas where, we’re not talking about massive amounts of financial resources.
Benjamin Bryant: And you know, family law in its nature is discretionary. it has to be an error of law. It can’t be that you don’t like the decision. That’s that’s not enough. And again, we rely on the barristers to really inform us about the advantages and disadvantages of the appealable points.
Benjamin Bryant: Well, Heather, I think that was a pretty good overview to help people get ready for court. What do you think? Did we miss anything?
Heather McKinnon: I reckon we did a pretty good job, especially for the morning. And you know, it’s a great resource for our clients going forward. I’ll be telling them, listen to this shows if you’re thinking about it.
Benjamin Bryant: That’s the best thing about these podcasts Heather. Having resources like this episode to help our clients understand and prepare? And for anyone who is heading to court, there were two other episodes I would strongly recommend. In episode 20, we spoke with retired Federal Circuit Court Judge Judy Small, and she gave us some great perspective on the discretion family law judges have in making their rulings. And in episode 15, we spoke to retired family court judge, the Honourable Rodney Burr, and amongst other things, he gave us his perspective on what information is actually important to a judge and how they go about making decisions. Both of these episodes are really unique and an opportunity to see things from a judge’s point of view. So they are well worth listening to before going into a courtroom. Next month we’re going to shift gears a little bit and talk about estate planning, in particular, estate planning after separation. Things like updating your will can too easily be forgotten in the high stress period of separation. So we want to draw attention to the important estate planning actions that need to be considered.
Benjamin Bryant: Heather will be sitting out on the next episode, and I’ll be joined by my colleague and solicitor Gemma Rope and by Sydney based barrister Louise Goodchild. If you have any specific questions or stories about estate planning or any other family law issue, please send them to familymatters@bryantmckinnon.com.au or message us on Facebook. We’d love to know what’s on your mind. We’ll put all the links to the resources mentioned and a full transcript of today’s show in the show notes on our website. And don’t forget, please share this show with family and friends who need it. Goodbye for now and hope to have you ears again next month.