Summer Break Survivor

So you think courts specialise in finding the truth? Nothing could be further from the real role of the courts, which is to find a winner, not necessarily a truth teller. That is especially so in the family court system, when it is your relationship, and the ending of your relationship that is under scrutiny, even if the arguments and the evidence are ostensibly about your children or your money. How can a court possibly find the truth of a relationship? How can anyone do so?

Raymond Finkelstein QC is a former judge of the Federal Court of Australia. In his paper “The Adversarial System and the Search for Truth” he says our legal system is not geared to finding the truth, at: http://search.informit.com.au/documentSummary;dn=048653243970036;res=IELHSS> ISSN: 0311-3140.

Former Justice Finkelstein goes on to say that, “the search for truth is central to the court’s legitimacy in the public’s eye. The public’s confidence in the courts’ ability to find an objective truth may not be philosophically sound, but in the end that does not really matter-the courts must be pragmatic and search for the best approximation of the truth”. He acknowledges that “it is commonly accepted by lawyers that the adversarial model is primarily designed to resolve disputes, rather than discover the truth. Lawyers recognise this, and adjust their behaviour accordingly.”

I doubt it can be said more plainly that if you are shopping in the adversarial court system for truth, you are in the wrong store.

The only reason to go to court is to win, and to resolve your argument that way, rather than going to court in the pursuit of the noble ideal of truth.

The second reason not to go to the Family Court, is that your case will be presented in a way that can neglect the truth by omitting evidence that you are not bound to give, and using court craft that is manipulative and theatrical. Your case will also ignore any perspective on the history of your marriage and the dynamic in your relationship, except your version of it. The papers and the verbal arguments will speak of facts and data, and will be about the best interests of your children and who contributed what to the asset pool. And of course, you will put the best gloss on these things to win your case. So far so good?

So why is this an argument for not going to court? Because your spouse will do exactly the same thing, and play exactly the same game! You will start off with the bright hope that he/she will be proven to be a liar/a waster/untrustworthy/the keeper of a hidden stash/a less competent parent than you/a poor contributor/undeserving/an alcoholic/crazy/personality disordered, etc. Your ex will hope and try to prove some of these things about you.

And then there’s what really happens at court, and what it feels like to be you. You may win some points, and you’ll lose others. You will pay vast amounts of money. You will be come exhausted and cranky and probably find it harder to parent effectively. Even if you win, you lose, because you won’t feel like a winner. And the biggest anti-climax of all, is that the day will most likely never come when the judge tells you that you are the better person, or whatever it is you hoped to hear that would make the whole experience worthwhile.

There are constant changes to the Family Court system, but in the end, all the changes are about propping up a system that doesn’t deliver what separating couples expect and hope for. And certainly not what they need.

Tradition is not about standing still, and you can access high quality family friendly help from lawyers with “traditional” expertise who have moved to apply their skills to constructive out of court settlements, that are about what is at the heart of the matter, not what is at the heart of a legal argument or an affidavit. What a brilliant break with tradition that is.

(PS. Another reason not to go to court, is that it is 98% likely that you won’t actually “go there”, in the sense of having a judge decide your case. You will most likely find that your expensive planning and preparation is necessary, but you won’t get to use it.)

Marguerite Picard
Collaborative Lawyer
Mediator
(Yes, I’m a real lawyer. I know where the Family Court is. I also know better than to go there).

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