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Lawyers and family law matters and resolutions ... Particularly out of court orders by consent

Below is a short article from a lawyer website.  So caveat emptor.

While it may be true that "only a small number of matters progress to a final hearing", it is not true that justice is done for fathers and children in all of those out of court settlements. Far from it.

While it may be true that "95% of family law matters settle out of court", this statement is often used by courts, feminists and governments to mislead and deceive.  The statement is extended and twisted to assert that there is no bias in the courts because fathers obtain favourable outcomes in approximately 50% of cases … BUT THAT IS ONLY OF THE 5% OF ALL FAMILY LAW MATTERS THAT GO TO AND ALL THE WAY THROUGH COURT.

Such equitably and just outcomes are not reflected in out-of-court settlements and orders (and parenting plans) … where fathers have and continue to get done over by the family law legal cartel/system of lawyers (solicitors and barristers), court staff and workers and judges, magistrates and registrars (and governments).

Perhaps the lesson to be learnt is that more fathers should pursue matters through courts where they are being frustrated by their ex-wife or -partner and being denied or limited access, contact and residence with their children.

Many fathers get rolled, by barristers and solicitors, either out of court altogether, or at court but in the court foyer/lounge (after being sent out of the court room to work on a resolution), into 'consenting' to orders (the court's lazy way of getting out of doing the hard work), only to find out later that they have been done over and dudded in the orders and that the Rice & Asplund judgment is subsequently used by lawyers and courts to block any changes to the orders, unless there is a "significant change to circumstances".

Be wary of using lawyers. Don't not use them, but do use them wisely (as you any other tradesman or 'professional'). And do do your homework, control and manage your own case and do not let the lawyers run your case for you (because if you do it will cost you a lot more money).

Many lawyers make a lot of their income from:

1) listening to clients retelling their woes (boohoo), and thus get paid very handsomely to act as unqualified 'counsellors';

2) the offering of advice and counsel (both legal and strategy and tactics); and

3) the exchange of correspondence and letters.

Thus it is in a lawyer's interest to drag out a case for as long as possible before going to court.

Sure, lawyers get paid for work at courts, especially the value UN-added barristers, but once the matter is resolved and over the lawyer's income is finished too. This is one reason why most fathers' solicitors DO NOT immediately suggest being proactive and initiating court action as the applicant, but rather exchange letters, etc until the mother is the applicant and the father is the respondent (on the back foot and lesser and more expensive of the two roles).



Ellington Boardman Allport Lawyers

Family Law

Out of Court Settlements

95% of Family Law matters settle out of court


In the vast majority of cases former spouses settle outstanding matters such as property and children matters between themselves. The process to formalise an agreement reached between parties is relatively simple and inexpensive. Litigation is expensive and there are some horror stories about how matters sometimes develop a momentum of their own and end up costing tens of thousands of dollars when the outcome achieved does not justify it. These however are only a small number of all cases.

Experience dictates that most clients will have already reached an agreement to settle all outstanding matters with their former spouse by the time they see their lawyer. Our task then is to formalise that agreement legally. An essential part of a lawyer's role is to advise clients whether the agreement reached is appropriate or not. More often than not, it is. [NOT … initially!]

Sometimes former spouses have no choice but to litigate in order to achieve an appropriate outcome. However even in circumstances when the parties commence proceedings, the court will encourage or sometimes require the parties to attempt to resolve the matter themselves. This can be through court ordered mediation or counselling or other informal negotiations. Only a small number of matters progress to a final hearing. Accordingly, litigants should always remain focused and aware of what the intended outcome of the litigation is and whether it is justified or continues to be justified as the matter progresses.

The starting point for achieving an out of court settlement is knowledge and information. Parties should obtain appropriate advice as to their prospects in the event that they are considering litigation. At the same time, parties should consider possible scenarios to resolve their disputes out of court. In addition, parties should consider the negotiation process itself. Normally, the better settlement is the one where each party feels that he or she has been closely involved in the settlement and that each person in part, "owns" the settlement reached.

Once a settlement is reached, it is necessary to formalise the agreement legally. The parties must complete and sign an Application for Consent Orders which is a pro forma document that contains detailed financial information (normally the parties themselves complete a draft version) and the Terms of Settlement which is the legal document that reflects the agreement reached. Those two documents, together with a photocopy of the marriage certificate, must be filed with the Court. In the event that part of the settlement involves the "splitting" of a superannuation fund, it would be necessary to obtain a valuation of the Superannuation interest.

A Registrar of the Court will then consider the documents and issue the orders in accordance with the Terms of Settlement. The Registrar has an obligation to ensure that all formal requirements have been complied with before making the orders. On some occasions, but very rarely, a Registrar may refuse to make the orders if it is considered that it is overtly unfair to one party.

Overall, the process to legally formalise an agreement reached between the parties is relatively simple and inexpensive. However as part of this settlement process it is important for each party to consult a solicitor to ensure that the agreement is fair and reasonable. It is also important that the parties fully appreciate and understand what they are legally entitled to before entering into a property agreement. Once orders are made they are legally binding on both parties and can only be varied or discharged by the Court in exceptional circumstances. For that reason alone it is important that both parties understand their respective obligations under the orders, even in circumstances when the orders are made by consent.
dad4life said
…While it may be true that "only a small number of matters progress to a final hearing", it is not true that justice is done for fathers and children in all of those out of court settlements. Far from it.

While it may be true that "95% of family law matters settle out of court", this statement is often used by courts, feminists and governments to mislead and deceive.  The statement is extended and twisted to assert that there is no bias in the courts because fathers obtain favourable outcomes in approximately 50% of cases … BUT THAT IS ONLY OF THE 5% OF ALL FAMILY LAW MATTERS THAT GO TO AND ALL THE WAY THROUGH COURT.

Such equitably and just outcomes are not reflected in out-of-court settlements and orders (and parenting plans) … where fathers have and continue to get done over by the family law legal cartel/system of lawyers (solicitors and barristers), court staff and workers and judges, magistrates and registrars (and governments).

Perhaps the lesson to be learnt is that more fathers should pursue matters through courts where they are being frustrated by their ex-wife or -partner and being denied or limited access, contact and residence with their children.

Many fathers get rolled, by barristers and solicitors, either out of court altogether, or at court but in the court foyer/lounge (after being sent out of the court room to work on a resolution), into 'consenting' to orders (the court's lazy way of getting out of doing the hard work), only to find out later that they have been done over and dudded in the orders and that the Rice & Asplund judgment is subsequently used by lawyers and courts to block any changes to the orders, unless there is a "significant change to circumstances".
What an excellent commentary. I know many dads and some mums who have not received outcomes that are appropriate and that the children are asking for. The suggestions here in this post are most welcome. It is getting started that scares many. :(
On 4/12/07 dadforlife said
Perhaps the lesson to be learnt is that more fathers should pursue matters through courts where they are being frustrated by their ex-wife or -partner and being denied or limited access, contact and residence with their children."
I agree with you dadforlife because that is what I did and where did it get me. I am labelled as an aggressive child abuser, derogatory of the mother to the children who makes frivolous and vexatious applications because of my seeking justice and the enforcement of Consent Orders. That was because I was not properly armed in the first place.

Derogatory of the mother to the children, not because I was, that would have put me in Contempt of an Order of the Court the mother had required because that is her why and what she was doing. But because I spoke out in affidavits (identifying specific offences) and Court of the mothers false claims and breaches of the Law. I was being derogatory by identifying criminal behaviour of a mother.
Dr John said
It is getting started that scares many
Is this site advertised in the Court Buildings in every state?

The assistance that can be given by some on this site could just change the face of family law as we have come to see it.

For evil to prevail a good man need do nothing.

I have just done a search on Yahoo for "Familylaw" 0 results within 10 pages, this concerns me greatly and "familylaw" 0 results within 12 pages and that is part of your name.

Maybe the inclusion of the word "familylaw", which included results from "Family Law" and familylaw Australia, in your searchable line would be of benefit to those of us needing help in the early stages.

This site would have been a good place for me to start when I was first faced with Contravention of Consent Child Contact Orders and an application to change the Consent Court Orders from having contact to no contact.

Do you know this site, Family Court Secrets - Divorcing Dad Guide or John McGuinness? Is the Guide worth recommending or buying?
No-Justice said
Do you know this site, Family Court Secrets - Divorcing Dad Guide, guide and or John McGuinness?

Is the Guide worth recommending or buying?
It is out of date and does not really allow for the recent changes.

There is a lot of COMMON SENSE advice in it, that is useful if you lack COMMON SENSE!

All the information in the document is on this web site.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 

lounge tactics

This article contains some good information about legal tactics to be wary of in the court lounges – I do not believe the lawyers/barristers act in your best interests despite the money they are being paid. The barrister gets paid the same day rate whether they have to risk their reputation in the courtroom or whether they can settle the case in an hour or so outside the courtroom.

Obviously they have a vested interest in persuading their client to settle. They use numerous strategies like this judge is mother friendly, the family report is rubbish, you won’t get the recommendations, 9/5 is almost shared care, the best you will get is #/# you would be crazy not to accept the offer. The ICL is against you – [the purpose of the ICL is actually to settle the case without trial with its the risk of appeal]. You are being unreasonable I won’t act for you. Your solicitor disappears from the room you are left alone for a final assault to settle – “I have prepared a document that you have to sign acknowledging that I warned you that #/# is the best you will get. Etc…” You’re just wasting your money to go on. It was interesting that my solicitor admitted she didn’t even cancel her appointments for the day until she had to go into trial.  

Fortunately I refused to sign. I went into trial totally distressed but it only lasted 5 minutes. The first words from the barrister’s mouths were that the case couldn’t be heard in the FMC allocated 2 days. The case was transferred to the Family court with a 12 months delay. All the preparation wasted, the expert reports mute and have to be updated, the default status quo effectively defeats the case before it is heard. Costs are tripled.

I would say this tactic of transferring cases from the FMC to the family court is the biggest father screw in a flawed system.  Beware, apparently it happens a lot.

I have to disagree about wanting to be the applicant – this subjects you to all sorts of disadvantage and ambush. You effectively have to place your cards on the table for a month for the opposition to prepare their ubiquitous denial of everything and counter. Inevitably they don’t reveal their response loaded with new allegations until the hearing day – no chance to rebut or defend.

For what my experience is worth I would suggest instructing the solicitor and barrister that there is to be no negotiation before trial. If it hasn’t settled in 12 months it won’t.
No-Justice said
The assistance that can be given by some on this site could just change the face of family law as we have come to see it.

For evil to prevail a good man need do nothing.

I have just done a search on Yahoo for "Familylaw" 0 results within 10 pages, this concerns me greatly and "familylaw" 0 results within 12 pages and that is part of your name.

Maybe the inclusion of the word "familylaw", which included results from "Family Law" and familylaw Australia, in your searchable line would be of benefit to those of us needing help in the early stages.

This site would have been a good place for me to start when I was first faced with Contravention of Consent Child Contact Orders and an application to change the Consent Court Orders from having contact to no contact.
An interesting comment because in fact we are receiving over 500,000 hits a month. Google is a difficult animal to get into the top pages unless you are a "refered link" that is the familylawwebguide.com.au needs to be on lots of other sites or have RSS feeds from this site to other sites. We have built a heap of RSS feeds ready for other sites to use. These RSS feeds are a wide range of offerings such as news only or forums only or top 10 posts only etc. so there is a lot of flexibility for other site admins.

The real issue for us is we have not completed the site. There are four more major components yet to complete before we are satisfied the site should be really advertised. The site admins and moderators are pushing the development group hard to get to the point we can manage Google and the 500 other search engine ratings by way of a range of techniques.

We do actually have a range of names in the meta data tags including familylaw and in fact when a forum post is made or a news item goes up a range of "metadata" is created by the site and attached to the pages for reference by the various search engines that look over the site… I and the other Admins thank you for the time you have taken to look into this issue. I can assure you we are on to it and what does interest me is we are seeing a number of judgements that are absolutely key and that support the spirit and intent of the new laws removed from Austlii and the FCoA web site judgements and are now only available here. This surprised me. The Sealey & Archer [2007] FamCA 432  case was typical. (Do a Google on it).

I will refer this post to the development group.
No-Justice said
Do you know this site, Family Court Secrets - Divorcing Dad Guide or John McGuinness? Is the Guide worth recommending or buying?
No but I will check it out thanks… :thumbs:

Site Director

Changes

No-Justice said
The assistance that can be given by some on this site could just change the face of family law as we have come to see it.
The thousands of hours of work by some of the very dedicated SPCA people has already changed the face of Family Law - those hundreds of amendments to the 2006 Act did not happen by accident.

Many of those people are involved with this site together with other very knowledgeable individuals and organizations working on the roll out of this vehicle - a portal for many other groups to use to pursue changes.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Agog said
The thousands of hours of work by some of the very dedicated SPCA people has already changed the face of Family Law - those hundreds of amendments to the 2006 Act did not happen by accident.

Many of those people are involved with this site together with other very knowledgeable individuals and organizations working on the roll out of this vehicle - a portal for many other groups to use to pursue changes.
I do understand there are many people to thank for the excellent work that has been and is ongoing with this site; and from the bottom of my heart I thank you ALL.

Your site is not only helpful to those in need of legal advice but also therapeutic in a soapbox type of way.

My Mum always told me write down your frustrations then bury them in the garden: "the sun will rise again tomorrow". So thank you for "Hyde Park".

That's not to say what I have said in Hyde Park is untrue at law of behaviour, only that it gives me the satisfaction of knowing I'm not the only one with the Mushin issue.

Again, I thank you all for this site and the work that will one day turn the lives of so many of our children from angry, hurt and confused young adults into loving parents who know how to share, communicate, co-operate and love each other for who they are not what they themselves want.

By the way, OneRingRules, monteverdi said he knows that site and it is a bit out of date, so don't waste your time.

Personally I don't use Google but will spend so time there if you tell me what you need and how best to get that.

"Over 500,000 hits a month" to me is a lot of Family Law problems.
No-Justice said
Do you know this site, Family Court Secrets - Divorcing Dad Guide or John McGuinness? Is the Guide worth recommending or buying?
I took a short look. I would have liked to have seen more information as it could well be extremly old material. Rather than "Fathers guide to winning the divorce war" I would prefer to see people looking at books like "Shared Parenting" Raising your children cooperatively after separation by Jill Burrett and Michael Green QC. ISBN 1 876451 72-6.

It was interesting that I couldn't even copy and paste any material from the web site to reference in this response. You can never read enough but I do feel that there has been a shift in the way courts are dealing with matters. We are seeing some change. I will be the first to say it is not yet enough but we are seeing some good outcomes. Conversely we have seen since July 1 2006 some awful appea decisions in our view. Exactly what the situation is and how many good outcomes there are in terms of numbers of days/nights we are not sure as we have yet to get updated stats. If you want something to do you could always write and follow up with the AG's office as to getting new stats from the courts.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Actually John McGuiness's material was rather good and contains a lot of common sense. The organisation provides support as its name suggests, however it is a commercial organisation and originated when people were getting 'bamboozled' (lovely word) by the so called medical experts testimony using all the phrases that nobody understood.

Many of us were surprised that they got the name past any registration and ICANN as it is generic. Perhaps they will now have to change it to 'Support Persons'

Half the legal profession have trouble with the term 'McKenzie Friend' and understanding their role in Court

There is some history and how to ask for one in Court in the SRL materials. No one has yet been able to explain why in Australia it is 'slang' and not officially recognised (unlike the UK, USA and Canada) but the 'original' McKenzie Friend was in fact Australian and enjoying a working holiday at the time in the UK. One would have thought Australia would only have been too happy to adopt a universal term.

Then again it was badly misused in Australian Criminal Courts in the 70's and as much as there is 'corporate' memory, the Courts might 'remember' the bad old days of its misuse


Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 

Applicant or Respondent ?

Thanks for sharing some of your experiences and observations srldad101.
srldad101 said
I have to disagree about wanting to be the applicant - this subjects you to all sorts of disadvantage and ambush. You effectively have to place your cards on the table for a month for the opposition to prepare their ubiquitous denial of everything and counter. Inevitably they don't reveal their response loaded with new allegations until the hearing day - no chance to rebut or defend.
In regard to your concern about being the applicant, in court proceedings, as opposed to being the respondent, I asked a friend, with experience in providing counsel and assistance for many separated Dads with their court matters (including accompanying them at court), for his views on the issue.  He offered the following information and views:

Should I be the applicant or the respondent?

This post continues in a newly titled thread: Applicant or Respondent ?
dad4life said
Thanks for sharing some of your experiences and observations srldad101.
srldad101 said
I have to disagree about wanting to be the applicant - this subjects you to all sorts of disadvantage and ambush. You effectively have to place your cards on the table for a month for the opposition to prepare their ubiquitous denial of everything and counter. Inevitably they don't reveal their response loaded with new allegations until the hearing day - no chance to rebut or defend.
Take it from some old warhorses. There are as many advantages to being an applicant as a respondent.

You can only be ambushed if you allow yourself to be.

Do you really expect a response that says 'He is a great Father and we should have week about shared parenting'?

The tactics for countering and handling late responses is an issue you should be posting in the closed SRL section.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 

Fantastic Site.. :)

I have only discovered this site and forum as recently as last night when I stumbled across it completely by chance but am feeling positive about the benefits that both myself and my partner will gain from being a part of this forum. We have a difficult situation as my partner is a good father and lost his application for 50-50% shared care after relocating to the state where the mother had taken the child at 6mths of age while he was away on work. I have supported him through his fight, during which my own family court battle regarding my son kicked off. At the time mine started both children were under 2and a half.

I have had to support him through the most trying time of his life as he went from being primary carer, to having his 6mth old daughter kidnapped in effect, just before we met. Then, since we have been together, he has had Domestic Violence allegations against him, which were subsequently ruled out upon evidence being heard. But then, the final judgement absolutely stunned us. He didn't get 50/50 depite relocating to live within 20minutes of the mother's residence. Then mother was proven to have lied about many things including domestic violence and has now used her position of power (appointed by the court when she was awarded sole paretal responsibility) to deny my partner any additional time- which is ordered to be as agreed by the parties. AND, then has the ordacity to turn up late to collect the child, has chopped and changed scheduled telephone calls left right and centre and is teaching the child that her surname is the same as that of the mother's, rather than her actual surname, which is the same as my partner's surname as stated on her birth certificate!

In his situation, he is being weaned out of his daughter's life by the mother who has told him directly 'the child does not need you (my partner-the father) in the child's life'! What shock's me, is that this mother has been given the power to do this to him by the court and at no time can he now stand up for himself for fear of her claiming abuse. He also cannot stand up for himself and even ask the question, why are you late? for fear that he will lose the only additional time he has so far sparsley recieved, albeit only at the mother's convenience. On several occasions, she hasn't even been present at handover and upon asking why the mother is not present he is told by her parent's that she will be back the following day, and yet she will not agree to him having that extra night.

My partner has now taken it upon himself to start up a group on facebook called 'Fight For Good Father's Rights' and a parenting group for father's in our local community. Both are gaining support by people of both genders and from all walks of life.

The positive to take from our situation is that we have been on both sides of the fence, either as a party or the partner of a party in a case. And we both support shared care parenting where the parents are equally capable, and are both strongly against Domestic Violence, as well as against those who allege it as a legal tactic.

We are both still fighting our cases, mine to protect my son and be allowed to remain in Tasmania with my partner and our children as a family unit, and my partner's in the hopes of returning to court to again fight for 50-50% shared care of his daughter, but are now both without counsell as the costs of litigation have exceeded 185k combined are we are still in for more expense. :(

I am sure that members of this forum will see many future posts from me, and perhaps my partner when I show him the site and he has an opportunity to read the various logical, informative and inspiring posts contained within.

A supporter of 'Family Violence is NOT O.K.' and equally of 'Fight for Good Father's Rights'.
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