Every now and again, I am told by a family law client, “I want you to be aggressive and dig in”. Usually their view of what happens in court has been formed by what they have seen on the television. What they want from me is to be the suave lawyer who rips apart the former spouse in the witness box leaving them crying for mercy.
Fortunately, the “LA Law style” of destroying a witness rarely happens in the Family Court. Usually, the former spouse’s lawyer or the judge would put a stop to it before it got out of hand. The reason for that is that the court generally accepts that family law parties are going through a hard enough time managing their separation and to “rip in” like you see on the television is likely to increase the level of animosity and make the parties even more polarised.
I was recently involved in a family law matter where the parties had a property dispute and there were two young children of the marriage. The husband’s brief to his lawyer was to be aggressive. There were several preliminary applications to the court made by the husband and I was bombarded with correspondence from my opposing solicitor. It was all designed to breakdown the wife and force her into settlement. Unfortunately, it had the opposite effect. She instructed me to chase down things that she would never be able to prove even though I told her that this would happen. She became more determined to fight back against the husband’s tactics and the matter proceeded to a four day hearing and then an appeal to the Full Court.
The parties got a result from the family law proceedings but only after each spending a lot of money on their lawyers. The combined legal bill amounted to about one third of the asset pool! The saddest part of the case was when the eldest child, who was under 10 years, told the family law consultant that all she wanted was for mum and dad to stop arguing. Despite having their day in court, they are now in an even worse position from when they started. The lawyers have all packed up and gone home and whatever ability they had at the beginning of the case to communicate with each other for the benefit of their children is now completely eroded.
Had the parties taken a deep breath and stepped back for a moment they probably would have been able to work through their issues, would have spent much less money on legal fees and would not have their children growing up knowing that mum and dad despise each other.
That to me seems to be something worth fighting for.