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12 common misperceptions of family law clients

“Oh would some power the gift give us, To see ourselves as others see us” – Robert Burns. 

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In any area of law, a client’s perceptions of matters related to their case are often inaccurate. This is partly because clients don’t have the benefit of the knowledge that comes from experience in such matters. Part of a solicitor’s job is to educate a client about the process, the substantive law and the like. As a result, it is prudent to manage the expectations of clients and after every significant event ask the client whether they understood what has happened, and listen their understanding so that one can ascertain their perceptions.

A client’s perceptions are often further clouded by their emotions, particularly in family law. Many clients’ perceptions of the situation are inaccurate or even twisted, because to put it bluntly their emotions can blind them from actuality. As a result, what a family law client believes to be the case often is not the case at all. And many clients resist being told (and even resent) someone else telling them that their perceptions are inaccurate or untrue.

For these reasons, family law can be one of the most difficult and frustrating areas of law, for lawyer and client alike. This can lead to conflict between the client and the lawyer, whose understandings of the case can differ radically.

This post will outline 12 ways in which the perceptions of family clients are often wrong. The examples chosen mainly apply to family law only.

12. What I want is exactly the same as what is in the best interests of my children

One of the first things that are explained to family law clients by their lawyers in childrens matters is the fact that in parenting matters, the courts place the interests of the children above all else. This is because section 60CA of the Family Law Act 1974 (Cth) provides that “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”. Section 60CC of the Act goes on to explain how the court determines what is in a child’s best interests.

When this advice is given, many clients then take the view that what they have wanted all along just happens to be identical with what is in their child’s or childrens’ best interests.

This cognitive error is understandable in the sense that no parent wants to believe that what they want is not in their child’s best interests. So for instance many fathers will believe that 50/50 equal contact or ‘shared care’ is in the best interests of their children, even when to anyone else that’s clearly not the case. To be clear, shared care may be consistent with the best interests of the children in some cases, but where one of the parents works full time, or there’s quite a distance between the homes of the parents, or there is a bad relationship between the parents, then such an arrangement would normally not be in the children’s interests. Also shared care is not the same as 50/50 equal time, which is often sought by fathers who are really seeking equal status as a parent.

11. What the child has said to me reflects their true wishes

This is an especially easy mistake for a parent to make when the child has told them something they really like. Conversely, if a child tells them something they don’t like, clients are likely to accuse the other parent of having turned their child against them.

Children of separated or divorced couples often find themselves the subject of a tug-of war between their parents. Even young children can tell when their parents dislike each other. Children do not choose to be in such a situation, and often they suffer psychological harm from it. Parents who are separated or divorced should be mindful of this.

The truth is that what a child says to a parent can be influenced by different factors. Sometimes children tell parents what they want to hear in order to make the parent happy with them, or because they fear telling the parent their true feelings. When a child tells a parent that they don’t like or don’t want to see the other parent, that can often be the result of one parent not hiding their hatred of the other parent, and the child being influenced by such attitudes. Mothers and fathers who hate each other can and do inadvertently poison the relationship the other has with their child or children.

Of course, sometimes what a child tells a parent does genuinely reflect their own views or feelings. But clients need to understand that this is not necessarily the case.

10. I really do want the time I am seeking with my children

There are some clients who in mediations and in court proceedings will fight to get an order or parenting plan which provides for more rights or time between themselves and their children than they are currently getting/is being currently proposed. At the time of trying to obtain these rights, the client desperately wants them. However, it is not uncommon that when the court proceedings are over they in fact don’t want to be with their children or see their children nearly as much as what they were seeking.

When clients are haggling over these things, there are often emotional and subconscious desires for recognition and validation of themselves as parents and the roles they have to play in their children’s lives. But outside court, parents have jobs to go to, recreational activities they like to participate in and so on.

As a result, clients should be as honest as possible with themselves and ask themselves whether what they want now is really what they want when the proceedings are over and there are legal obligations in place for contact times with their children. Will they really want to spend every weekend/ half of every week / every second week/ such other times with their children?

9. My drug/alcohol abuse doesn’t affect my ability to parent

Many clients who have drug or alcohol problems like to believe that their excessive use/addictions have no impact on their abilities to parent well and cause no harm whatsoever to their children. Of course, this is plainly untrue. Drug and alcohol use affect a parent’s perceptions, and make them less alert and organised. Anyone who abuses substances is going to be affected in ways that make them dangers to themselves and others. Furthermore, children who are exposed to heavy drinking or illicit drugs are more likely to engage in such activities themselves when they are older.

If the court discovers that a parent believes their drug or alcohol abuse is unimportant, this will be extremely detrimental to their case for two reasons. Firstly, their ability to care for their children will be massively impaired from their substance use. Secondly, such an attitude reveals a complete lack of understanding either about the effects of drug use or the responsibilities involved in caring for children (or both). Such a parent is unlikely to stop abusing substances and probably has a poor understanding of what good parenting involves. A possible result is that the court will only order supervised contact with that parent.

8. My lawyer is not on my side

When family law clients are told things by their lawyers that they don’t want to hear, often their first reaction is to think that their lawyer is not on their side, or even against them. But a lawyer who really is on your side will try and help you understand the process and advise you what the courts are likely to find/decide. Getting angry at your lawyer in such circumstances really is just a case of shooting the messenger!

Unfortunately, your lawyer can only work within the system. If you don’t agree with the Family Law Act 1975, that is a matter you should raise that with the federal Attorney-General or your local federal MP. As mentioned above, the courts regard the child’s best interests as the most important factors that overrides all others. Furthermore, lawyers are not mere mouthpieces for their clients – as officers of the court they owe obligations to the court which override their duties to their clients. For example, it is improper and unethical for a lawyer to abuse the privilege under defamation law afforded to lawyers in court by attacking opposing parties of their lawyers without sufficient grounds to do so: see for instance Clyne v NSW Bar Association.

7. It’s my lawyer’s fault I didn’t get what I want

Family law clients often blame their lawyer(s) for them not getting the outcome they wanted. Usually however their lawyer did an OK job and it’s not the lawyer’s fault.

A classic example of this is when the client wants the lawyer to argue a certain point but the lawyer decides not to because they would not assist the client’s case. Again, your lawyer is not your mouthpiece. Clients often lose sight of the fact that in children’s matters the court only places the best interests of the child as the important consideration. In the court’s view, nearly everything else is just background noise of little or no significance.

Furthermore, from experience it is often the case that once a judge has read the material, he or she will have formed a view and cannot be persuaded otherwise. Sometimes a judge will even tell a lawyer what they think of a particular issue and the lawyer will take the hint and move onto the next issue. In such cases there is little your lawyer can do. Ultimately, your case is in the judge’s hands and it is he or she who decides what happens. This is particularly so in family law, which is highly discretionary in nature.

6. Attacking the other parent will help me

Many clients believe that saying bad things about the other parent will help their case, when the truth is that it often doesn’t. For example, fathers who want more contact than what they are already having will want to put all sorts of nasty things in their affidavits about their ex-partners, as though that will somehow help persuade the court that 50/50 equal time is the ideal outcome. In such cases, the client’s anger is clearly getting the better of them.

In fact, such an approach is counterproductive in a few ways. Firstly, the judge reading the affidavits (who is usually very experienced as a lawyer in family matters) will easily be able to tell that the parent is still bitter about the relationship and is not able to understand the issues clearly. Secondly, the other parent is likely to respond with their own affidavits which attack back, resulting in the proceedings degenerating into two parents determined to tear each other down. Thirdly, it makes the prospect of negotiating acceptable orders by consent more difficult as one or both of the parents are likely to be in little mood to give much to the other as a result of the nasty accusations that are contained in their affidavits. The likely result is more frustration, more legal fees and more delay.

5. A bad partner must be a bad parent

There are many reasons why relationships fail. The truth is that most of those reasons do not really affect whether a parent should still be allowed to see their children.

Since the introduction of the Family Law Act in 1975, Australia has had a no fault system with respect to why relationships have ended. Consequently, the court is not very interested in knowing why the relationship ended or each of the party’s failings as a husband wife or defacto, unless they are relevant to that person’s suitability to be a parent. It is quite possible for someone to be a better mother or father than they were a wife or husband.

As a result, the issue of whether somebody is a suitable parent is separate to whether or not they were a good partner, and the courts are only interested in the former question. It is therefore important for parents in child proceedings to try and put their relationship to one side and think of the other party as a parent only. Of course, in practice this is often extremely difficult however it must be done so that parents can put the interests of their children first.

4. My ex-partner is a psychopath/sociopath

There are two reasons why your opinion about whether your ex-partner is a psychopath/sociopath or has some other mental disorder counts for very little. Firstly, unless you are a psychiatrist or a psychologist, you are not qualified to make such pronouncements about other people and your opinion on the subject is not considered evidence. Unfortunately, internet searches on the personality traits of psychopaths and sociopaths are no substitute for university degrees and clinical experience in that field.

Secondly, being another person’s ex-wife or ex-husband results in you hardly being an impartial observer. It is natural for ex-partners to think the worst of each other, particularly if they had a bad breakup.

Only a very small percentage of the population would be diagnosed as a psychopath or sociopath by a mental health professional. If you do believe that your ex-partner is a psychopath/sociopath or has some other mental disorder, chances are that once again it’s your anger/bitterness making you see that person in that way. Of course, that’s not to say that that person is perfect – nobody is. But you should be aware that your emotions inevitably colour your feelings and beliefs about your ex-partner.

If you are adamant that your ex-partner is a psychopath/sociopath, it would be better to state the facts about that person in your affidavit which could lead to someone else forming that conclusion, rather than just stating that that is the case.

3. Facts and my opinions are the same thing!

Many clients fail to distinguish between the facts and their own opinions, especially in family law. Facts are things that you have seen or heard. Opinions are the conclusions that you draw from the things you see and hear. The opinion that one person can form from a certain set of facts may differ from another’s opinion derived from the same facts, depending on their individual ways of processing information. This is why opinion evidence is inadmissible in court (with the exception of expert opinion).

As a result, your evidence should try to stick to the facts as much as possible. You should focus on what you observed, what you heard, what you did and other such matters. The best way to impress your opinion in court is to state the facts upon which that opinion is based. Otherwise, the court will assume that there is not a proper basis for your opinion.

2. I’m not angry or bitter!

Many family law clients even delude themselves about the emotions they are feeling. Some clients have yelled at their lawyers in furious denial that they are angry! Others will deny feelings of hatred or bitterness towards their ex-partner, but ramble on about what awful human beings they are non-stop! If you believe that your ex-partner is a truly horrible person and find yourself explaining that to other people constantly, chances are you do hate them.

Of course, hate is a normal human emotion which is often felt between ex-partners, at least for a time. Whilst clients should be honest to themselves about their true feelings, they should also not be hard on themselves for feeling the emotions they feel. It’s a natural part of grieving with loss. However, if your hatred is consuming you for a long time, it may be time to see a counsellor. You should not let such a negative and destructive emotion hold you back, particularly if it’s obstructing your ability to have a positive relationship with your children.

1. There is a sinister motive behind my ex-partner’s actions

Often family law clients will perceive things in a completely different way to a person who is not emotionally involved. For instance, a party who commences the court proceeding will often be interpreted by the other as having done so merely to cause them distress! Wanting to see the kids more often apparently has little to do with it.

Conversely, when a parent is trying to obtain more time with their child, they often believe that the other parent is trying to stop them from having any relationship with their children, when this is often not the case. There could be other reasons why you are not getting the amount of contact you want.

This assumption of a sinister motive between ex-partners is quite common, and probably not just among those who take each other to court. In such cases, counselling may be necessary so that each party has a true understanding of the other’s viewpoint, and something can be worked out to avoid future problems.

Clients who have this perception should perhaps ask their lawyer, who hopefully has a good understanding of the case, whether their perception is likely to be accurate. Such reality-testing may weaken such perceptions.

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