From the point of view of a psychologist who has done work in Family Law reports, there are a number of things that a family law litigant can do to damage their own case.
A Necessary Expense
The first way to shoot yourself in the foot is to proceed with zero legal advice. Lawyers can be costly, and you have probably heard enough stories to fear that there may be no 'bang for your buck.' But the reality is that even if you pay a lawyer for a couple of sessions just as consultations to make sure you're across the basics, it's money well-spent. Some lawyers will pressure you to have the represent you, but if you don't have the funds you don't have the funds, and there are a few lawyers out there who will advise without 'acting for' you. And on this basis, they will definitely give you good guidance, because they would like you to come back later, as a result of it having worked the first time.
You may also be able to get a short consultation with a legal aid lawyer, and in the last resort, there are always duty solicitors (and sometimes barristers) available at the court on the day. There is a multitude of things you need to know to avoid making potentially fatal missteps along what will be a long and stressful journey. Having no reassurance that you're at least on the right track will inflate your anxiety well out of proportion.
As an example, Independent Children's Lawyers (Guardian ad Litems in other jurisdictions) will be under pressure to make sure they do not give you anything that even resembles legal advice, because that is not their job. You do not want to get that person offside, as their view usually carries much weight with judges (who are free to reject it when they get things wrong). Further, being seen to give you advice could give your ex grounds to have them removed, which is a brilliant stalling tactic if the goal is to create a 'status quo' by keeping them well away from you for as long as possible. Changing ICL might add 6 to 12 months to the time before a final hearing.
Courts can be reluctant to change the children's situation after a long period of 'routine,' even when that routine is caused in the first place by enormous disruptions like moving to another state and cutting you out of their lives. False allegations of sexual abuse are another tactic to create a 'status quo,' where the father is lucky to have minimal supervised contact until he can prove himself innocent.
As another example, there are many technicalities around subpoenas, and you may find yourself playing paper tennis with a Registrar who rejects your requests repeatedly because of some tiny issue, which isn't the same issue on the 4th version as it was on the 3rd or 2nd. A few rounds of this could result, for instance, in vital CCTV footage getting erased because it wasn't approved in time. Not a good thing, and sure to cause you enormous upset. As a note, remember that McDonald's generally wipe the tapes after 2 weeks to recycle them. Speed is of the essence if, for example, she tries to ram your car in the McDonald's parking lot, but just misses, or claims that your partner was "neglecting the children, leaving them on their own while at the far end of the store," but describes in her affidavit an area of the department store that is directly under CCTV cameras that got the whole incident, and show she was never more than 4 metres away while shopping.
There are many more examples of little things that can trip you up. Some that I've seen include: Failing to ask leave of the court to tender a second opinion as evidence; Failing to file on time; Failing to serve documents properly; Failing to certify copies of evidence; Failing to ask leave of a different court to allow use of documents filed there in the Family Court; and there are surely many more.
Psychology - The Technical Bits
However, from the psychological side of things, there is the question of how you present yourself and your issues. This requires a long hard look at yourself, and owning what you did or did not do when with your ex. Failing to do so leads to a range of ways in which you can sabotage your case.
A classic example is anger issues. If your anger contributed to the relationship breakdown, this will be used against you by your ex's team. Seeking treatment to deal with it sooner rather than later gives you ammunition when a family report writer addresses the problem in an interview. Not only will you be seen to be 'owning your stuff' and doing something about it, you will be speaking a language around anger that the reporter understands. You will also be less likely simply to react to allegations of anger with anger. See the title of this page if you've lost track of where I'm going with that.
Another is to consider yourself knowledgeable about psychology based on Internet research. Trying to tell a psychologist their job will can end up with things backfiring on you. Suppose you have researched narcissism, and you end up scoring abnormally *low* on a narcissism scale. This can merit some concern about whether the test is valid, because tests are designed for people who have an average understanding of psychological problems, which is usually not very much at all. If you seem to be avoiding answering questions honestly, that can be a red flag. If, after you get a report you start telling the psychologist they are wrong because your 20 hours of internet research trumps their 2000 hours of professional training and years of experience, your behaviour will weigh more than your test score. The reporter may even need to withdraw a report based on subsequent behaviour that contradicts initial conclusions. This. Has. Happened.
Not seeming to be 'child-centred' or 'child-focussed' is a landmine that can take off your foot more effectively than a Colt .45. You might be angry at many of the things your ex has said in affidavits. However, there is no guarantee that these are things that were his or her idea. Legal tactics dreamed up by the lawyer can find their way into statements of things that are anything but facts. I have seen women whose first language is not English hornswaggled into signing affidavits they didn't understand, that were written in English many years above their writing grade level, by solicitors wishing to find them DV shelter accomodation and make the battle simple to win. The tactic outrages the husband, whose anger is then used to show what an angry person he is. He is angry because the DV never happened, but tactically, well...KABOOM. Again, public record (obscured by S.121 in Australia, of course).
If you already have the children and are working to limit your ex's access to them, you also need to take a hard look at the situation and figure how much of that may be revenge and the extent to which you might have convinced yourself that things from the children's perspective were worse than they actually were. You also have to consider that research shows that children need both parents in their lives, and those who do not have this suffer poorer outcomes. The fact that someone may have been the wrong partner for you does not trump the fact that they are one of the only two biological parents the child will have, and the children's right to this must not be ignored or trampled. Even though the adversarial nature of the court process suggests that there should be a winner and a loser, everyone loses unless the children's right to time with both parents (where safe to do so) is respected.
"Diagnosing" your ex is another way to get a reporter offside, unless you yourself have sufficient qualifications. If you have googled "Borderline Personality Disorder," avoid calling it that. Not being "child-focussed," and simply attacking your ex, will not go down well, not to mention that if there's no diagnosis in place, saying such things to third parties may expose you to defamation suits. That doesn't mean that it can't be an organising principle in an affidavit. You present a few documented examples of relationship instability, some proof of a history of impulsive decisions, and maybe a series of SMS messages that vilify you, then beg for reunification, then call you "Satan," then threaten suicide while blaming you for the binge eating. Evidence presented this way will make an astute reporter will think "Hmmm.... sounds borderliney to me." It is then up to the reporter to process that information and decide if your ex meets various criteria. Ideally, psychological testing will occur.
Objective Testing - Or Not
Trying to 'work' a test is another way to aim at your big toe and pull the trigger. For one thing, they are based on statistical patterns, and I cannot tell you which scale 'I prefer a shower to a bath' is an indicator for, or which is 'better.' But it has been shown to indicate...something. Furthermore, the best psychological tests have ways and means of detecting when someone is trying to manipulate the result, and "presents himself in an overly positive light, to an extent that invalidates the results" is not something you want before a judge. Your ex's solicitor will have it highlighted on their copy. With a little sticky note on the side of the page with some scribbles. Honest responding is the only way to avoid this outcome, so that a clear picture emerges of you, warts and all. As noted above, if you have already started to address the issues you know about, that's a very good thing. If you take on board the findings in the report and start to address them once they're laid out for you quite clearly, that's the next best thing. Again, it's something best done before you're ordered to do it.
If your evaluations only involve a 'clinical interview' and zero psychological tests, and they seem to have gotten it entirely wrong, or only considered your ex's allegations and none of your evidence, following up with an independent assessment (with leave of the court to do so!!) can help balance the picture. There is a lot of literature on how objective tests are superior to unaided clinical judgment, and if the court's report writer disregards this (or isn't trained or permitted to do testing, eg., counsellors and social workers), then you don't want to miss the opportunity to balance what may seem a biased opinion with scores that cannot be biased. Any psychologist looking at a test profile has to say the same thing about what it says. It's in the manual. They may have differences about how it connects to things in evidence, but that is exactly why clinical judgment is weaker than objective tests. This is a case where you may want to ask leave to have a 'second opinion' (see menu above) tendered, which may also provide additional challenges to the report.
Another way to do avoid lead in your foot, as it were, is if your ex is making allegations about your mental health, to have an independent assessment done and tendered in the appendix of your main application affidavit. Put out the fire before it is lit. Maybe avoid a further report on yourself. But if a second report happens to be ordered, remember that report writers are ethically obliged to make additional enquiries about matters important to their conclusions, that they may not have known to look for until they spoke to you or your ex. If they fail to account for previous reports on you, they are failing in their duty to the court to consider relevant evidence, and you have grounds for a challenge. And if you do commission a report, remember that they can be moderately expensive. Reviewing evidence and other documents, critiquing other reports, interviewing other people for collateral information, or assessing children will add to the cost.
The preceding can also be raised if you discuss matters in your evidence of which they are unaware - because the ICL (GAL) has failed to provide much of your evidence to them as a result of taking a dislike to you early in the piece (or having some other grudge against you, eg., a conflict of interest). Again, I have seen it happen. Assuming the ICL (GAL) is painting a fair picture by way of equal disclosure is an assumption you really want to check, but discussing with the reporter every piece that they should have read. There is a line in the classic TV series The Odd Couple, where Felix explains to Oscar that to ASSUME is to make an ASS of U and ME. Remember that when you assume that you are being treated fairly by the system. Check. Every. Detail.
Psychological Tips
My last tips are more psychological than purely practical. You will be frustrated, and upset, and angry and feel that there isn't any justice. Your child has had spinal damage from one of your ex's psychotic episodes, but Child Safety sat on their hands, or as I saw in one letter, told you "they weren't being abused badly enough" despite the photos of bruises supplied. Let this focus you, and find ways of venting your anger and frustration that doesn't lead to doing silly things, like defaming judges or other professionals by name in a public forum. That will get you sued, and a lawsuit will reduce your ability to fight later on.
Join with other parents in your situation. There are Facebook groups aplenty, some very large now, which share information and advice and have people who lend a friendly ear, who usually have been through the same thing as you. Take time out to take care of yourself, and don't ruminate over things for countless hours. It accomplishes nothing. If you need to think about something, have a notebook where you keep ideas. Once it's written down, you won't be afraid of forgetting it, and if there's a genuinely new thought, you'll know it.
One thing I always ask my Family Law clients to do is to organise their information into a timeline. Failing to do this as an ongoing project, and panicking and doing it at the last minute is a .45 slug to the pinky toe.
Practically speaking, a timeline is something that you end up having to have, so better you do it than pay your lawyer a few thousand to do it. Think about all the major things that have happened since meeting your ex. Put them in a spreadsheet. Keep it sorted by date. Now think of the things you need as evidence. Use the major things as a reference point to help you establish the date as accurately as you can. Look at old credit card statements to establish exactly when you bought petrol in Woop-Woop, and your ex shoplifted something which you found out about after reaching the back of Bourke that night. Scan your phone records for the call to police where you reported her boyfriend's stepfather assaulting you at the kids' football match, so you can fix date and time. Your lawyer can reduce it to essentials later. Right you now need more detail than less, and you need it sorted by date.
This is a sample spreadsheet, set up using OpenOffice, a very affordable (=free) alternative to Microsoft (TM) Excel. If you format Column A as Date (in your local style – dd/mm/yy in Australia) then you can sort as you go. You can insert rows between dates if you want to be fancy, or just add things at the bottom then sort by date before you save.
A Necessary Expense
The first way to shoot yourself in the foot is to proceed with zero legal advice. Lawyers can be costly, and you have probably heard enough stories to fear that there may be no 'bang for your buck.' But the reality is that even if you pay a lawyer for a couple of sessions just as consultations to make sure you're across the basics, it's money well-spent. Some lawyers will pressure you to have the represent you, but if you don't have the funds you don't have the funds, and there are a few lawyers out there who will advise without 'acting for' you. And on this basis, they will definitely give you good guidance, because they would like you to come back later, as a result of it having worked the first time.
You may also be able to get a short consultation with a legal aid lawyer, and in the last resort, there are always duty solicitors (and sometimes barristers) available at the court on the day. There is a multitude of things you need to know to avoid making potentially fatal missteps along what will be a long and stressful journey. Having no reassurance that you're at least on the right track will inflate your anxiety well out of proportion.
As an example, Independent Children's Lawyers (Guardian ad Litems in other jurisdictions) will be under pressure to make sure they do not give you anything that even resembles legal advice, because that is not their job. You do not want to get that person offside, as their view usually carries much weight with judges (who are free to reject it when they get things wrong). Further, being seen to give you advice could give your ex grounds to have them removed, which is a brilliant stalling tactic if the goal is to create a 'status quo' by keeping them well away from you for as long as possible. Changing ICL might add 6 to 12 months to the time before a final hearing.
Courts can be reluctant to change the children's situation after a long period of 'routine,' even when that routine is caused in the first place by enormous disruptions like moving to another state and cutting you out of their lives. False allegations of sexual abuse are another tactic to create a 'status quo,' where the father is lucky to have minimal supervised contact until he can prove himself innocent.
As another example, there are many technicalities around subpoenas, and you may find yourself playing paper tennis with a Registrar who rejects your requests repeatedly because of some tiny issue, which isn't the same issue on the 4th version as it was on the 3rd or 2nd. A few rounds of this could result, for instance, in vital CCTV footage getting erased because it wasn't approved in time. Not a good thing, and sure to cause you enormous upset. As a note, remember that McDonald's generally wipe the tapes after 2 weeks to recycle them. Speed is of the essence if, for example, she tries to ram your car in the McDonald's parking lot, but just misses, or claims that your partner was "neglecting the children, leaving them on their own while at the far end of the store," but describes in her affidavit an area of the department store that is directly under CCTV cameras that got the whole incident, and show she was never more than 4 metres away while shopping.
There are many more examples of little things that can trip you up. Some that I've seen include: Failing to ask leave of the court to tender a second opinion as evidence; Failing to file on time; Failing to serve documents properly; Failing to certify copies of evidence; Failing to ask leave of a different court to allow use of documents filed there in the Family Court; and there are surely many more.
Psychology - The Technical Bits
However, from the psychological side of things, there is the question of how you present yourself and your issues. This requires a long hard look at yourself, and owning what you did or did not do when with your ex. Failing to do so leads to a range of ways in which you can sabotage your case.
A classic example is anger issues. If your anger contributed to the relationship breakdown, this will be used against you by your ex's team. Seeking treatment to deal with it sooner rather than later gives you ammunition when a family report writer addresses the problem in an interview. Not only will you be seen to be 'owning your stuff' and doing something about it, you will be speaking a language around anger that the reporter understands. You will also be less likely simply to react to allegations of anger with anger. See the title of this page if you've lost track of where I'm going with that.
Another is to consider yourself knowledgeable about psychology based on Internet research. Trying to tell a psychologist their job will can end up with things backfiring on you. Suppose you have researched narcissism, and you end up scoring abnormally *low* on a narcissism scale. This can merit some concern about whether the test is valid, because tests are designed for people who have an average understanding of psychological problems, which is usually not very much at all. If you seem to be avoiding answering questions honestly, that can be a red flag. If, after you get a report you start telling the psychologist they are wrong because your 20 hours of internet research trumps their 2000 hours of professional training and years of experience, your behaviour will weigh more than your test score. The reporter may even need to withdraw a report based on subsequent behaviour that contradicts initial conclusions. This. Has. Happened.
Not seeming to be 'child-centred' or 'child-focussed' is a landmine that can take off your foot more effectively than a Colt .45. You might be angry at many of the things your ex has said in affidavits. However, there is no guarantee that these are things that were his or her idea. Legal tactics dreamed up by the lawyer can find their way into statements of things that are anything but facts. I have seen women whose first language is not English hornswaggled into signing affidavits they didn't understand, that were written in English many years above their writing grade level, by solicitors wishing to find them DV shelter accomodation and make the battle simple to win. The tactic outrages the husband, whose anger is then used to show what an angry person he is. He is angry because the DV never happened, but tactically, well...KABOOM. Again, public record (obscured by S.121 in Australia, of course).
If you already have the children and are working to limit your ex's access to them, you also need to take a hard look at the situation and figure how much of that may be revenge and the extent to which you might have convinced yourself that things from the children's perspective were worse than they actually were. You also have to consider that research shows that children need both parents in their lives, and those who do not have this suffer poorer outcomes. The fact that someone may have been the wrong partner for you does not trump the fact that they are one of the only two biological parents the child will have, and the children's right to this must not be ignored or trampled. Even though the adversarial nature of the court process suggests that there should be a winner and a loser, everyone loses unless the children's right to time with both parents (where safe to do so) is respected.
"Diagnosing" your ex is another way to get a reporter offside, unless you yourself have sufficient qualifications. If you have googled "Borderline Personality Disorder," avoid calling it that. Not being "child-focussed," and simply attacking your ex, will not go down well, not to mention that if there's no diagnosis in place, saying such things to third parties may expose you to defamation suits. That doesn't mean that it can't be an organising principle in an affidavit. You present a few documented examples of relationship instability, some proof of a history of impulsive decisions, and maybe a series of SMS messages that vilify you, then beg for reunification, then call you "Satan," then threaten suicide while blaming you for the binge eating. Evidence presented this way will make an astute reporter will think "Hmmm.... sounds borderliney to me." It is then up to the reporter to process that information and decide if your ex meets various criteria. Ideally, psychological testing will occur.
Objective Testing - Or Not
Trying to 'work' a test is another way to aim at your big toe and pull the trigger. For one thing, they are based on statistical patterns, and I cannot tell you which scale 'I prefer a shower to a bath' is an indicator for, or which is 'better.' But it has been shown to indicate...something. Furthermore, the best psychological tests have ways and means of detecting when someone is trying to manipulate the result, and "presents himself in an overly positive light, to an extent that invalidates the results" is not something you want before a judge. Your ex's solicitor will have it highlighted on their copy. With a little sticky note on the side of the page with some scribbles. Honest responding is the only way to avoid this outcome, so that a clear picture emerges of you, warts and all. As noted above, if you have already started to address the issues you know about, that's a very good thing. If you take on board the findings in the report and start to address them once they're laid out for you quite clearly, that's the next best thing. Again, it's something best done before you're ordered to do it.
If your evaluations only involve a 'clinical interview' and zero psychological tests, and they seem to have gotten it entirely wrong, or only considered your ex's allegations and none of your evidence, following up with an independent assessment (with leave of the court to do so!!) can help balance the picture. There is a lot of literature on how objective tests are superior to unaided clinical judgment, and if the court's report writer disregards this (or isn't trained or permitted to do testing, eg., counsellors and social workers), then you don't want to miss the opportunity to balance what may seem a biased opinion with scores that cannot be biased. Any psychologist looking at a test profile has to say the same thing about what it says. It's in the manual. They may have differences about how it connects to things in evidence, but that is exactly why clinical judgment is weaker than objective tests. This is a case where you may want to ask leave to have a 'second opinion' (see menu above) tendered, which may also provide additional challenges to the report.
Another way to do avoid lead in your foot, as it were, is if your ex is making allegations about your mental health, to have an independent assessment done and tendered in the appendix of your main application affidavit. Put out the fire before it is lit. Maybe avoid a further report on yourself. But if a second report happens to be ordered, remember that report writers are ethically obliged to make additional enquiries about matters important to their conclusions, that they may not have known to look for until they spoke to you or your ex. If they fail to account for previous reports on you, they are failing in their duty to the court to consider relevant evidence, and you have grounds for a challenge. And if you do commission a report, remember that they can be moderately expensive. Reviewing evidence and other documents, critiquing other reports, interviewing other people for collateral information, or assessing children will add to the cost.
The preceding can also be raised if you discuss matters in your evidence of which they are unaware - because the ICL (GAL) has failed to provide much of your evidence to them as a result of taking a dislike to you early in the piece (or having some other grudge against you, eg., a conflict of interest). Again, I have seen it happen. Assuming the ICL (GAL) is painting a fair picture by way of equal disclosure is an assumption you really want to check, but discussing with the reporter every piece that they should have read. There is a line in the classic TV series The Odd Couple, where Felix explains to Oscar that to ASSUME is to make an ASS of U and ME. Remember that when you assume that you are being treated fairly by the system. Check. Every. Detail.
Psychological Tips
My last tips are more psychological than purely practical. You will be frustrated, and upset, and angry and feel that there isn't any justice. Your child has had spinal damage from one of your ex's psychotic episodes, but Child Safety sat on their hands, or as I saw in one letter, told you "they weren't being abused badly enough" despite the photos of bruises supplied. Let this focus you, and find ways of venting your anger and frustration that doesn't lead to doing silly things, like defaming judges or other professionals by name in a public forum. That will get you sued, and a lawsuit will reduce your ability to fight later on.
Join with other parents in your situation. There are Facebook groups aplenty, some very large now, which share information and advice and have people who lend a friendly ear, who usually have been through the same thing as you. Take time out to take care of yourself, and don't ruminate over things for countless hours. It accomplishes nothing. If you need to think about something, have a notebook where you keep ideas. Once it's written down, you won't be afraid of forgetting it, and if there's a genuinely new thought, you'll know it.
One thing I always ask my Family Law clients to do is to organise their information into a timeline. Failing to do this as an ongoing project, and panicking and doing it at the last minute is a .45 slug to the pinky toe.
Practically speaking, a timeline is something that you end up having to have, so better you do it than pay your lawyer a few thousand to do it. Think about all the major things that have happened since meeting your ex. Put them in a spreadsheet. Keep it sorted by date. Now think of the things you need as evidence. Use the major things as a reference point to help you establish the date as accurately as you can. Look at old credit card statements to establish exactly when you bought petrol in Woop-Woop, and your ex shoplifted something which you found out about after reaching the back of Bourke that night. Scan your phone records for the call to police where you reported her boyfriend's stepfather assaulting you at the kids' football match, so you can fix date and time. Your lawyer can reduce it to essentials later. Right you now need more detail than less, and you need it sorted by date.
This is a sample spreadsheet, set up using OpenOffice, a very affordable (=free) alternative to Microsoft (TM) Excel. If you format Column A as Date (in your local style – dd/mm/yy in Australia) then you can sort as you go. You can insert rows between dates if you want to be fancy, or just add things at the bottom then sort by date before you save.
Wait, you say, this is the psychological rather than the practical section, right? Well, it is psychological, really. Practical things, done right, clear space in your head. Processing space, and emotional space. Getting a fair deal for yourself and your kids is probably one of the most important personal projects you will ever undertake. Bursts of panicked running about are fine for chickens with their heads off, but not for litigants.
If you never had discipline before, it is time to start getting some, and attacking these little things to build your case. The timeline is there on your computer, always. Waiting for you. Something comes to mind, type it in. If you're away when it comes to mind, SMS the thought to yourself. That way it's safe, and you won't forget it. But you also won't sit there chewing on it like a cow chews its cud. You can focus better on other things. You can rationalise taking a few days off of working on your case when you need it, because you have 'bought' the time off with a steady stream of work over the last week or two. And you'll also see that things are getting a bit more under control, bit by bit, drop by drop. The journey of a thousand miles starts with one step, but each step along the way brings you imperceptibly closer to the end of it. Look back once in a while and remind yourself how far you've come.
Lastly, a poem. A Grook, actually, by Danish writer Piet Hein, worth putting on your fridge.
If you never had discipline before, it is time to start getting some, and attacking these little things to build your case. The timeline is there on your computer, always. Waiting for you. Something comes to mind, type it in. If you're away when it comes to mind, SMS the thought to yourself. That way it's safe, and you won't forget it. But you also won't sit there chewing on it like a cow chews its cud. You can focus better on other things. You can rationalise taking a few days off of working on your case when you need it, because you have 'bought' the time off with a steady stream of work over the last week or two. And you'll also see that things are getting a bit more under control, bit by bit, drop by drop. The journey of a thousand miles starts with one step, but each step along the way brings you imperceptibly closer to the end of it. Look back once in a while and remind yourself how far you've come.
Lastly, a poem. A Grook, actually, by Danish writer Piet Hein, worth putting on your fridge.
T.T.T.
Put up in a place
where it's easy to see
the cryptic admonishment
T. T. T.
When you feel how depressingly
slowly you climb,
it's well to remember that
Things Take Time!
Put up in a place
where it's easy to see
the cryptic admonishment
T. T. T.
When you feel how depressingly
slowly you climb,
it's well to remember that
Things Take Time!
Author: Dr. Travis Gee is a psychologist practicing in Queensland Australia, in Beenleigh and on the Southern Moreton Bay Islands. A former Lecturer in Psychology, he has been writing reports and helping people for over 15 years through his private practice. He offers consultations on this and many other issues both face-to-face in Queensland and via Skype to the rest of the English-speaking world. He regrets that his French is no longer up to scratch for consultations in that language. While this page is (C) Dr. Travis Gee, 2017, permission to reprint is granted to any lawyer anywhere for the benefit of his or her clients, provided the entire text is reproduced unchanged, including ths paragraph. This permission is also extended to charitable organisations that assist self-represented litigants who may struggle with some of these fine points of this aspect of their case.