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Applicant or Respondent ?

Is it better to be the applicant or respondent in family court matters? And what is the relationship, if any, with being proactive or reactive in your family law and child support matters and proceedings?

Thanks for sharing some of your experiences and observations srldad101.
srldad101 said
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".

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).
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.
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?

If we assume that srldad101 is correct, when he says that solicitors generally prefer to be the respondent (especially when their client is dad), and that he is also correct when he outlines how solicitors have a tactical approach that is designed to prolong outcomes. Then we need to think about those two statements !

The writer also outlines the "system's" propensity towards making a contested case of child and parenting arrangements into years of litigation and the obvious pitfalls to the unwary of getting to that point.

If dad is allowed to remain focused on who caused the break-up, who is perpetuating the conflict, who isn't supporting the children's relationships, who is pulling the stunts and most importantly, all the things that are wrong with the mother's proposal. Then it's not going to make any difference whether he is the applicant or the respondent. We need to focus on the children, our plan and our expectations for the future.

It is less important whether dad is the applicant or respondent than it is whether dad knows:

1. What he wants to achieve:

2. How he will achieve it; and in

3. In what ways his plan benefits the children?

I will go into into more detail later.

When I'm having a fence built, how many hours the job will take may seem just as important as how much per hour, when looking at the quotes.

However, when there is no other choice but to go to court over children's issues, ask yourself: Is it more important to focus on finding the cheapest solicitor or focus on getting the quickest and most beneficial outcome?  There is a difference.

For me this is where the question of whether to be applicant or respondent in a children's case really starts.

In most cases it is the degree of conflict and duration of litigation that does the most damage to both parents and children, financially and emotionally. So my first priority would be to focus on how best to shorten the process as much as possible without this itself effecting the outcome other than in a positive way.

Consider the following:

Mum would in most cases already have the primary care of the children, at the time of litigation, whether because she used some devious means or because dad simply moved out, leaving the children in her care. Or maybe dad or the whole family had genuine problems or unmet needs. (Remember it's what we do that counts not what we later say!) This leaves mum in an advantageous position to dictate the care arrangements up until either 1) mediation resolves the issue (a must do first step), or 2) until the matter is heard by the court (the natural progression). If that is the situation, by the time we reach mediation or the court, then we had better accept that fact with all its dynamics because we simply can,t change it now!

The applicant always speaks first!

Now that mum has the advantage, should she also be given first say in the courtroom? That, to me, appears to be the consequence and outcome of letting her be the applicant: just so that dad can first learn of all the standard things mum is going to accuse him of (and be sidetracked by his outrage at her accusations) before he starts court action; such things as the following:

- He has limited experience in looking after the child;

- He does not have any understanding or skills to cope with their individual needs;

- He is too busy working to be able to manage any more than one night per fortnight;

- He is violent and controlling by nature;

- That he only wants more time with the child so that he will pay less child support or receive some other benefit;

- He abuses alcohol or other drugs;

- He is mentally unstable / depressed / suicidal;

- That he will not or cannot co-parent, follow the same routines, or disciplines the children inappropriately; or

- That he doesn't have suitable living and sleeping arrangement for the child / children.

Dad's response (of outrage and distraction from (what should be) his purpose and plan - the children) … I can hear all the 'victims' out there responding with:

- "That's not true, I'm a great dad."

- "I have a flexible working arrangement."

- "I don't use drugs."

- "I was never violent or controlling."

- "She's a liar."

- "She's poisoning the kids minds."

- "She's trying to alienate my children."

- "She's really the alcoholic / gambling addict."

- "I was always there for the children."

This is the natural reactive position. Men being reactive generally are much easier to control from this position and far more predictable. If I am to believe the mass of voices saying that solicitors often use this to their advantage, then my question is, is it easier to change them or me?

So where is our focus now? Defending yourself?

We get trapped into defending all that isn't real and relevant and therefore it's a great way of diverting our attention from what really is relevant and real (our plan for the children and our lives together going on into the future).

So here we are - as the reactive, disadvantaged respondent - saying to the court in response that:

- "I and the children have a problem."

- "I just want to have a meaningful relationship with the children as it was before the separation but the ex has done everything over the last 3 -6 - 12 months to prevent this from happening."

- "That any parent or the court should clearly see that this situation is not in the children's best interest."

- "That I am a conscientious father who is just trying to protect the children right to have a relationship with me."

- That the ex is a bad mother and is lying to the court and that I deny all the accusations she is making against me."

In the above situation, here is what we are really trying to say to the court:

- "I am a committed loving parent who is totally focused on the children and there best interests."

- "Your honour, my children have been in a terrible situation for some time at the hands of this calculating woman but I am not the one bringing the matter before the court, she is."

- "My ex wife has been preventing the children from spending meaningful time with me for months but I haven't acted. In stead I have waited for her to act first."

- "I'm not really clear on how I want the future to look for the kids or how I am going to achieve it but I am clear that I don't agree with her plan."

- "Rather than telling you how things are, I have preferred to let the ex do that so that I can tell you how things aren't."

I have a fundamental problem with leaving control with the other side, when they have the advantage and with a vested interest in slowing things down. The longer a situation involving children remains in place, the harder it becomes for the court to make any substantial changes. This helps establish a status quo and at the negotiating table starts dad off as far up the proverbial creek as possible. In this scenario dad is often seen signing consent orders that don't accurately reflect the best interests of the children simply because he is scared of receiving less in an unfavourable judicial decision.

The question for me is not whether or not Dad should be the applicant because it is clear that in legal matters "He who has a problem should be the one acting" The question for me is how to get dad to be effectively proactive. It's all the work that is done prior to the application that matters and makes the difference in obtaining a meaningful result quickly.

1. Be proactive, if the relationship can be saved, do all you can to save it.

2. If it cannot be saved then accept that and look for support, if you are finding the going tough … there is plenty around - focus on the kids.

3. Take whatever time with the kids you are being offered in the interim and make this time as light and positive for them as possible.

4. Don't put the kids in the middle, don't ask them questions about the ex or burden them with your problems.

5. Develop a parenting plan. Look genuinely at your situation now and in the future and make your plan achievable. Consider how you will get the kids to and from school / kindergarten, etc, the distance between you and the other household, the special needs of your different kids and their stages of development.

6. Put your plan in writing. If you and your ex are not able to agree on future arrangements for the children, then sooner or later at mediation or court both plan's can be put on the table rather than you just disagreeing with hers.

7. Ensure you plan allows for growth and change. Don't get locked into a one size fits all plan/orders that cannot be changed. Find, read and understand the effect and impact of the Rice and Asplund judgment on what is required to get the courts to hear you in your circumstances change.

8. Initiate mediation, move forward in a genuine attempt to resolve the issues. Just make sure you have a plan to put on the table.

9. If an agreement still cannot be reached you are already half way to being prepared. If you haven't already had legal advice get it now.

For dad to be the applicant, he has to be proactive in all ways. Accepting that "in most cases" Dad will be seen as the less important or skilled parent before the fact and the more capable breadwinner is a good place to start. It makes enrolling into a parenting course a sensible thing to do and it also helps keep the focus of the affidavit where it needs to be:

- The history of Dads and paternal families meaningful involvement in the child's life / children's lives, traditions, special bonds, cultural ties.

- The FEATURES, ADVANTAGES and BENEFITS to the child of having Dad and paternal extended family remaining meaningfully involved in his or her life.

- Dad's (and family's) situational ability to remain meaningfully involved in the child's life / children's lives.

- Dad's (and family's) desire to remain meaningfully involved.

- Mum's and Dad's ability and or intention to co-parent effectively from separate households.

- Dad's understanding of the child's / children's day-to-day and special needs.

- Dad's future expectations and current / past involvement around:

+ Parenting

+ Education

+ Religion

+ Location

+ Health

+ Sporting, cultural and other activities

Some other important facts the court needs to consider in granting an application are:

- The children's relationships with other family and their support network;

- Children's routines;

- Dad's parenting and discipline techniques;

- Employment;

- The existing arrangements;

- Predictable future arrangements;

- Use or non-use of drugs / alcohol; and

- History or non-history of family violence or any other potential issues,

If the above are all included in the applicants affidavit then there is very little room left for a sneak attack. All the boxes are already ticked, there are no holes to be exploited by the other side that will not simply be seen as "facts in dispute"on an interim basis (see Goode and Goode).

Attachment


Remember, it is a mistake not to mention something up front that you may later choose to enter as evidence. (All of the above to be included under the normal, standard range of affidavit sub-headings of course).

Lastly, there may be some negative aspects to the separation, accusations that need to be made and facts that need to be stated. It is important to remember however, that this is not a point scoring exercise. Only bring up problems and barriers to which your application offers a solution. You do not want to highlight any conflict (for that will be used against you).

When I look at cases that have involved long protracted litigation and entrenched conflict I am constantly surprised how often I find that mum was the applicant and dad, through his lawyers, has been the respondent and consequently reactive ever since.

For the most part however, in cases where the above was followed by a proactive dad and solicitor, the result has been children spending meaningful and significant time with dad  right from the first interim hearing.
dad4life said
Lastly, there may be some negative aspects to the separation, accusations that need to be made and facts that need to be stated. It is important to remember however, that this is not a point scoring exercise. Only bring up problems and barriers to which your application offers a solution. You do not want to highlight any conflict (for that will be used against you).
Some very good advice here! Do not hide any problems - if you do the other side will jump on them. I would be against NOT highlighting any conflict, as it can bite you on the bum! If I was the other side's lawyer, I would would go to town on it.

What I would not want to see in an affidavit, as the other side's lawyer, is the following:

Hit/slapped wife; went to anger management classes (in other words obtained help). Do not hide your problems - attack is the best form of defence (attack your problem).

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. 
My advice, whether you end up an applicant or a respondent is once you decide to act, you act quickly and proactively.

Magistrates raise their eyebrows as to why there has been no action. They will also, happily say, "ignorance of the law is not a defence".

Don't let pride get in the way. If you are recommended (but not ordered) to do parenting classes, do them. Don't say - but I'm a good parent, I shouldn't have to. These are all things you can have in your battle kit to use to deflect the other side in court.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
After being involved with hundreds of cases I can state it matters very little.

What can matter is how long it takes for someone to initiate an action. There are two cases detailed in the SRL-R forums. One that has taken 3 years not to go to Court - Buckley's Chance of getting the existing arrangements changed - "a practice has developed" always sounds better than 'status quo'. And the other - the children have been out of the country for 2.5 years and now have foreign citizenship.

Most people get a little worried about what is going to be contained in a response - well on most occasions it will probably be quite nasty - but then again the fact that it has progressed to legal action means that the parties are not seeing eye to eye on the issues and is to be expected.

It the good old days the applicant usually went first but self-reps often dangerously allow the others side's legal team to lead and take control.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
In our matter, we were the applicant. The ex was the respondent. We filed an application (for the issue of parentage to be resolved) and affidavit. We had legal representation for this first appearance. The ex showed up without any legal representation and had not filed any reply (and never did). We were granted what we asked for, after the respondent found a legal rep. By the next hearing (the results were in a month before) we had already done mediation and were waiting for the respondent to do the same to enable joint mediation to take place. The matter was set down for six months time. The FM was most impressed with our pro-active approach.

The next time we went before the FM, we had consent orders drawn up ready for the FM to read over and make official. Again the FM was most impressed with our pro-active approach. Rather then wait and see, we did our research and already knew what we had to do, and we did it, we didn't wait for someone to tell us what to do, we found the answers ourself. We cared enough about the cause that we were willing to do all we could.

We had tried sending her legal rep letters exploring the option of consent orders, but never ever received a reply. So we kept going, we don't give up. Throughout it all, when we saw a hurdle that we couldn't get over, we kept searching for another way around it.

I believe the FM could tell that we were doing all we could, and the other side was difficult. The FM said to us that they would be more then happy for us to come back later and try to argue anything in the orders that the FM made (both sides being SRL's at the last court appearance, the FM said they would look over the orders to make sure the wording was all OK).

I believe if it's worth having, it's worth fighting for. Do everything you can to make your situation better. Don't wait for someone else to fix it for you. Use the resources out there, use a professional if you need to, but don't expect them to do it all for you. A lot of the time I was the one telling our legal rep what needed to be done next, and they agreed with what i was saying, but never thought to make those suggestion themselves.

As they say, if you want something done right, do it yourself.

So be the applicant, or be the respondent, but be pro-active, don't wait for them, or you will be waiting a long time.
Miacat said
I believe if it's worth having, it's worth fighting for. Do everything you can to make your situation better. Don't wait for someone else to fix it for you. Use the resources out there, use a professional if you need to, but don't expect them to do it all for you. A lot of the time I was the one telling our legal rep what needed to be done next, and they agreed with what i was saying, but never thought to make those suggestion themselves.

As they say, if you want something done right, do it yourself.

So be the applicant, or be the respondent, but be pro-active, don't wait for them, or you will be waiting a long time.
What a very good post, that very neatly encapsulates what the SRL-R people say.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Miacat said
As they say, if you want something done right, do it yourself.

So be the applicant, or be the respondent, but be pro-active, don't wait for them, or you will be waiting a long time.
Fantastic and inspiring words of wisdom. We need this message to go out. I was in court on Tuesday assisting a case in a local court AVO matter and you know what surprised me was the huge numbers of young people who were presenting for DIC and substance abuse, who were given every opportunity to present themselves, to tell the Judicial Officer their story, to show some remorse and ask for some leniency.

All these people let themselves down with a simple guilty statement. Why did they not engage and become pro-active? Why didn't they fight to try and minimise the financial penalties applied, why didn't they try to engage the Judicial registrar when asked… It was like lambs to the slaughter. Perhaps we need to form a mobile legal practice that can locate an officer in each local court with some State or Federal funding to give these people the encouragement and guidance that they need before presenting.

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
 
I think most people get a little 'overwhelmed' at being in any Court building.

Perhaps you should post your little story about Gouldburn Street and the SRL (who despite promises to get used to the place - had never been in the building before) and was literally struck dumb quote "by all the marble and polished wood"

We should remember that the original design of Court buildings in the Western World was to make them intimidating - to give the public confidence in the justice system and to intimidate the guilty.

I wish I could say something really witty about the above sentence in light of the new NSW AVO legislation

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
The people I have seen go through the process have generally been overwhelmed by everything - the constant abuse and threats by the ex, the insane demands, the lack of control they have over their lives, constant loss and fear,  their complete lack of expectations - usually reinforced by their lawyer or by WHAT THEY HAVE SEEN HAPPEN TO OTHERS.

Some people give up before they have begun.

One person I knew simply did not understand what would happen to him, did not realize that he would have to change his life and work to accommodate the change in circumstances. - instead he said 'She can have the kids - shes a good mother - I will continue to work.' Then after he lost his house, his assets and then his income in CSA he 'suddenly' realized that he really needed to have the kids live with him - apart from the fact that I advised him at the start that the kids NEEDED TO BE WITH HIM.

If he was only prepared to do that at THE START he would  have saved a lot of money and stress AND the children and him would have been better off. As it was she only lasted a year or so then kicked the children out anyway.

People have got to stop thinking that its a WOMEN'S job to be a PARENT. I know thats difficult given the CONSTANT MEDIA statements  "women & children" which never associate men with children.

Changing expectations is not easy.

The other problem is that men seem unable to be activists. For some reason many Australian men simply lack the interest, motivation, skill and community concern to become ACTIVE in what happens to them and others. Its almost like half the country has simply given up - leaving a few hard working people to carry the load.

 Maybe I am not explaining myself well enough
Jon, you're right, a lot of men just give up.

I know my partner wanted to 'just give up' a few times. Boy he is glad he didn't.

When he told me he wanted to give up, I would just keep going, but not tell him so much of what was going on, to give him a break from it all, it can get overwhelming at times. Then when he was ready again, I filled him in on what was going on, and where it was up to.

One thing I noticed was that he was soo scared of being like his father (who left his family when he was young) or some 'weekend only' dad, and that would have no 'real' relationship with his son (made harder by the fact there was another man playing dad to his son).

I know he is still worried about that now, but not so much, he has really put all his heart and sole into his relationship with his son, and knows the benifits will out way any negatives that may (or may not) come.

It was a team effort, neither of us could have done it alone.
I think one of the main reasons why SRLs don't always do well in court, is that they are still in shock and suffering depression when the court process begins.

It's really hard to have a fighting attitude and to be in the sharpest mental state when you have just gone through one of the biggest life-changing events there is.

For men that don't re-partner, or have many emotional or financial resources, the task is all the harder.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
I think Jon's post amplifies some of the points the SRL-R people discuss and are contained in our materials

Your ability to understand and take an active part towards a successful outcome process is very much dependant on your background, your willingness to learn and even what you do for a living. Not everyone is capable of being able to understand let alone present in Court even before the trauma of it reaches them. Too many rely on second hand and third hand knowledge or seem to have this belief that you enter a Court and magically you will know what to do.

A severe problem is that many tend to read the negative only postings on certain sites where the complainant is telling people what a lousy outcome they received and that it is a waste of time going to Court. This generates an ex ante situation before the real work is yet to be done.
Some do want to give up because they are daunted by the process and the lousy outcome 'negative ninnies'

We sometimes wonder whether both the prospect and stress of going to Court removes Common Sense from people because of the strange things they get involved in and their inability to focus on the main issues.

Some just do not believe that any work process is involved - one of the SRL-R questions is how much 'one on one time is being denied you'. Sometimes we will get an answer of 20 hours a week and our response is 'good, you can devote 10 hours a week to getting a good outcome and becoming the best SRL ever. Sometimes this is met with astonishment that we have suggested some work is involved

I think your comments about Men not being activists is very true, many certainly lack the concept of community and do leave the workload to a dedicated few. When the workload to the Amended Act is looked at, there were probably several hundred people involved but this eventually boiled down to perhaps 20 or 30 very dedicated individuals. When you consider a petition to Parliament for 'Shared Parenting' only generated 7,000 signatures the true nature of 'non activism' becomes apparent.

Artemis said
"I think one of the main reasons why SRLs don't always do well in court, is that they are still in shock and suffering depression when the court process begins"

This is very true but even worse when you consider that all the support organisations recommend that you try to get some help during this period, very few actually do

And if their emotional and financial bank balances are near zero the task becomes harder


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