TAS Family Law - Outcome of Final Hearing

[Lennon]

Hi all,

I thought I'd update you on the outcome of my final hearing.

My proceedings was primarily about how much time my kids should spend with me, and who should pay the costs of travel. My ex moved with the kids after we broke up, when the kids were very young. We (stupidly) didn't reach an agreement about time with me or travel costs before they left, and in the first few years, I did all the travel because they were too young to travel alone.

When they were old enough to fly alone, I wanted them to spend time with me in my home, but my ex wanted me to continue doing all the travel and spending time with them near where they live. Also, my ex didn't ever agree for me to see them more than once or twice a year.

Fast forward a couple of years of trying to reach an agreement about this, including 12 months having mediation through Family Relationships Australia (worse than useless). Proceedings commenced by my ex in October 2016 (she wanted to get in first in case I commenced proceedings in my state).

The Judge didn't read any affidavits before the first interim hearing and would not order that the children spend any more time with me than my ex would agree to because he "didn't know what was going on with these kids" (The answer, if he had asked, was "nothing unusual other than they rarely get to see their dad"). So I only saw them twice this year and had to pay for all airfares.

Last week was our final hearing, and the judge gave me all the orders I asked for, including 3/4 of all school holidays. He ordered that we share travel costs 1/3 her and 2/3 me (I suggested this because I earn more than she does).

My ex's *massive* error was failing to provide a single reason in her affidavits as to why the children should not see me during each school holidays. I don't know how she got it so wrong, given she was legally represented the entire time. Her evidence was entirely focused on our marriage (as if the judge cared whether I started more arguments than she did before we broke up 5 years ago), which was irrelevant because we had agreed that there should be equal shared parental responsibility.

My barrister kept cross-examination extremely brief because we didn't want to give my ex a chance to actually provide a cogent reason why the children shouldn't see me during each school holidays. This worked and the judge appeared completely bemused by my ex's approach to the proceedings.

I direct briefed my barrister a few months before the final hearing to minimise fees - my total fees were around $6,000. I wrote my own affidavit (I am a lawyer, but with no training or experience in family law) and was very careful not to be baited by the outrageous (but entirely irrelevant) allegations my ex made in her affidavits. I only talked about the kids, what my relationship with them was like, how I facilitated them having a relationship with my family and why I believed it was important that the spend regular time with me.

My ex instructed a lawyer and a barrister throughout the proceedings. She told the court that her legal costs were over $40k - a lot of money to pay for a case that was always a loser.

 

[Rod]

Thanks for update. I appreciate the time and effort you have spent giving us an insight into how a case runs.

Disappointing to hear a judge making interim orders when the judge had not read material put before the bench.

 

[Lennon]

No problem Rod.

The judge also hadn't read any of the material at the commencement of the final hearing. I was absolutely shocked, but apparently that is normal in the FCCA family jurisdiction.

 

[SamanthaJay]

Thanks for the update Lennon. Good to hear that you will get a reasonable amount of time to spend with your kids.

There doesn't appear to be a straight forward answer sometimes with these judges.

 

[sammy01]

Thanks for the update.... Shocking to hear that judges don't read the documents they insist we submit....
Mate any thought on self representing if you had your time again? Also any thoughts on preventing her from relocating to that distance didn't become a hindrance to your time with the kids?

 

[AllForHer]

Lennon, thank you for the update. It's great that things went your way in the end.

When we were preparing for trial, I struggled to find a barrister who would accept a brief from a self-represented litigant. Nearly all in our area would only accept briefing from a practicing lawyer. Although you were self-represented in proceedings, did your profession as a lawyer enable you to brief a barrister? Or did you find one willing to speak to you as a self-represented litigant?

 

[Lennon]

Mate any thought on self representing if you had your time again? Also any thoughts on preventing her from relocating to that distance didn't become a hindrance to your time with the kids?

With hindsight I wish I had briefed someone to attend the early directions hearings. If I had known how brutal the family law jurisdiction is (compared with the courts I usually appear in) I definitely would have done so. The main issue was that the judge gave me such a hard time that it gave my ex reason to believe that he would continue to do that at the final hearing, and that he would continue to just hand her everything she asked for (as he did at the first two directions hearings). My ex's belief that the judge was 100% on her side ruined any chance of achieving a reasonable settlement before trial (he wasn't on her side, he just wouldn't determine any issues in dispute until the final hearing, but my ex did not understand this).

Other than that, I researched extremely hard. I read every relevant case on austlii that I could find, twice. I was very careful in how I drafted my affidavit, so that I came across as a person who was taking the case very seriously even though I was self-represented. I used the court processes to help me to - subpoenas to obtain relevant information, and a Notice to Admit Facts and Evidence which hit her very hard.

Looking back at the time my ex relocated, I think that if I had refused to allow her to go a court would have decided that she could go anyway, because of our particular circumstances at the time. However, I 100% should have made sure that we had specific court orders that covered all the relevant items - parental responsibility, communication, time with me, costs of travel, provision of information, non-denigration etc. We had a pathetic parenting plan that Family Relationships Australia drew up that was entirely founded on an assumption that my ex would continue to be cooperative. Of course she was sweet as pie while securing my agreement to her leaving, but as soon as she left her attitude changed and she became obstructive rather than cooperative. It was incredibly naive of me to allow that to happen without court orders in place.

Lennon, thank you for the update. It's great that things went your way in the end.

When we were preparing for trial, I struggled to find a barrister who would accept a brief from a self-represented litigant. Nearly all in our area would only accept briefing from a practicing lawyer. Although you were self-represented in proceedings, did your profession as a lawyer enable you to brief a barrister? Or did you find one willing to speak to you as a self-represented litigant?

I found this very difficult too. At one point I nearly gave up on arranging a direct brief and tried to set up an appointment with a lawyer, and since I was so far away I found this incredibly difficult too. Not one lawyer would even speak to me on the telephone before I attended a first (paid) appointment. Again, this is not how I work in my own area of practice, I always speak to prospective clients on the telephone before arranging a first appointment.

I eventually called in a favour from a lawyer I knew, who was able to recommend a barrister who was prepared to take the direct brief. The barrister doesn't often take direct briefs and I think the fact that I am a lawyer was a large factor in his decision to take it on.