By Cristina Huesch
A recent case is a timely reminder of how your conduct at a trial and in the period leading up to it may impact the outcome of your hearing. In a recent case known as “Leitch and Border” (not their real names), her Honour Judge Harland made the following interesting comments throughout her judgement. At the end of this blog, we’ll give you some handy hints on how to avoid such findings in your final hearing:
“Both parties had to hear very difficult things about their parenting deficiencies and the negative impact of their behaviour on their children. There were no outbursts by either of them. I watched them carefully and both appeared to take in what was being said.”
“To their credit the parents agreed to some orders early in the proceedings….By agreeing to those orders the parents have shown a willingness to implement change.”
“[The mother] says [a drink driving incident] occurred after she had been drinking at home alone. A friend called her in some distress and she decided to drive. She acknowledges that it was poor judgment.”
“When cross-examined by the [Independent Childrens Lawyer] about [an incident in which the mother acted inappropriately in front of a child] she still did not show any insight about the undesirability of painting herself that way in front of the children.”
“The father has an extremely poor driving record. The father does not have a driver’s license. In his affidavit he says he had too much to drink and was caught with a couple of drink-driving charges about 15 years ago and had his licence suspended. There is much that the father leaves out of his affidavit about that period.”
“Exhibit C is the father’s criminal record from Queensland police. “[The evidence from a police subpoena] was made available well before the trial affidavits were due. The father makes no mention of the assault charge in his affidavit and minimises his appalling driving record and attitude towards court orders, which is made all the worse because he applied for the fine option orders on multiple occasions and did not comply with them at all.”
“When asked in cross-examination the father could not think of a single positive thing to say about the mother and could not say anything positive about her parenting skills. In spite of this he goes on to talk about the children being ‘beautiful kids’, reasonably healthy and X is doing reasonably well at school. X has a 99% attendance record at school. The father does not give the mother credit for any of this and even this shows a concerning lack of insight by the father.”
“The father was not as open when giving his evidence. I prefer the evidence of the mother …………”
“[A witnesss] gave his evidence candidly. He was very nervous when giving his evidence and he explained that a close friend of his had just died in a car accident the night before and he was shaken up by that. I accept his evidence.”
“[Another witness]was to be available for cross-examination but was overseas at the time of the hearing and attempts to contact her as arranged failed.”
“It is telling that even when under scrutiny of cross-examination [the father] could not say a single positive thing about the mother. This is concerning because if he spends time with the children, unless he changes, he will undermine the relationship both children have with their mother.”
“[The father says in his affidavit]: “I have in no way tried to influence X against the mother rather it has been X’s experiences which has had led her to form the view of her mother and thus resulting in a poor relationship with her.”
“This paragraph is telling as it is clear from the text messages that the father himself tendered in the DVO proceedings that he has actively encouraged X’s negative views of the mother.”
“ There are several text messages where the father keeps X updated about the court proceedings. In one message he asks X to take photos of bottles because she should be contacted soon about her solicitor. ….These are clear examples of the father involving X inappropriately in the proceedings….. He is asking X to gather evidence against her mother in support of his case.
“The father shows an extraordinary lack of insight by sending X a copy of a threatening message he sent to Mr P for her “entertainment”.”
“The father had great difficulty, when being cross-examined, accepting the possibility that X tells him bad things about her mother because she knows that is what he wants to hear. In fact he rewards her for that.”
So what are some DO’s and DON’Ts????
- Do give credit where credit is due – this can demonstrate maturity and objectivity. If the other parent is a great parent, say so! If they have a good relationship with the child, concede this. You will have a better chance of being believed when you talk about other matters.
- Do Admit to acts of poor judgement – if you have done something extremely stupid such as drink driving (whether or not a child is in the car), admit this and if you need to, explain it as best you can. Highlight the rarity of such stupid acts by ‘fessing up. If you try to hide or minimise such behaviour, a judge may be left wondering ‘what else is going on?’
- Do use all your best witnesses for affidavits – you cannot compel a witness to return from an overseas holiday when court is scheduled, but do put your best case forward. The general rule is that if you file evidence from a witness, they must be made available for cross-examination in the actual hearing. However, they may not be needed for cross-examination. Their evidence may still be accepted ‘untested’.
- Do show insight into your behaviour – if you have learnt from your past mistakes, say so. If you have acted in a dumb way, show the court that you have changed. Undertake the necessary programs and workshops run by various family relationship centres or their referral partners. This indicates you accept that certain behaviours are not ideal, and that you want to improve yourself. Also – you can actually learn something!
- Don’t give evidence about the children’s experiences without talking to your solicitor first – this is a frequent error made by parents who think that by telling the court what terrible things the child said about the other parent, this will help their case. It may not! It may show that in fact you are inappropriately poisoning a child’s mind against that parent (to be perfectly blunt), or inappropriately involving the child in adult issues, or even rewarding a child for exaggerating an otherwise fairly normal disciplinary issue. This can harm your case significantly.
- Don’t lie about anything, but in particular remember that subpoenas can be issued to police for your entire criminal history (including what seem to you to be minor offences when you were 17)
- Do get legal advice before filing your affidavit – it’s important to make sure your evidence is credible, consistent with other evidence (eg police records) and covers all relevant issues. Don’t forget that leaving relevant facts out can be just as damaging as putting irrelevant facts in.
- Don’t involve your children in the proceedings – it does not suggest you are a particularly mature parent, which can damage your case. Make sure you don’t take the bait if the child tells you the other parent is talking to them about the proceedings. Try to say things like ‘Oh, leave that up to mum and dad to discuss..we’ll sort it all out. We love you very much.”
- Do consider accepting legal advice on consenting to particular issues or interim orders early – it can show a judge that you are willing to consider the best interests of the children over and above your own personal needs and wants. Don’t forget judges hear many cases every day. You might find your case is presented best if you only bring the most significant issues to the judge’s attention, rather than every small niggly point.