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  • Married to the Mob (cont)
  • By Adrian McGregor
  • The Weekend Australian
    Page 2
  • 18/11/2000 Make a Comment
  • Contributed by: admin ( 15 articles in 2001 )
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Says the wife: "Yet I had matters filed on me on the day of the trial all the time. I felt I was being penalised for being in court on my own, without the status of a lawyer."

She says that although judges are honourable, they are only as good as the information they are given.

Michael Berry, family law lecturer at the University of Western Australia, says the problem for the Family Court is the increasing demand on its resources.

"There is such a growing number of unrepresented litigants that proceedings are protracted by people who, through no fault of their own, are unfamiliar with court process," he says. "The court is caught between knowing how much to advise them without seeming biased in favour of unrepresented litigants. It's a difficult tightrope. In the past 12 months the Family Court of Western Australia, under the direction of the Chief Judge Michael Holden, has produced a Litigants in Person handbook to assist unrepresented people going to trial."

Although mates rates may well be employed in other jurisdictions, it's impact in the Family Court is devastating given the emotions involved in dividing children and property. Berry readily concedes solicitors may offer discounted rates to colleagues.

"Where one party is able to afford decent legal representation and the other party is not, the simple fact is that you get what you pay for," he says. "It is not uniquely related to solicitors. People who aren't lawyers, if they've got friends in the profession, may get discounted rates from their associates."

The Queensland Law Society's family law committee chairman Peter Sheehy says of mates rates, "I'd be silly to deny it happens because it does. I haven't seen a barrister appear for nothing but certainly there may be some concession given on the fees."

But Sheehy says the last thing family law practitioners want is a lawyer-client who ends up in a courtroom trial. "We had one judge in Brisbane who was very critical if a family law barrister or solicitor appeared before him. His attitude was that the family lawyer should have known the matter could be better settled by pre-trial negotiation."

The ex-wives describe the preparation for each court date as gut-wrenching.

"I was used to it in the end and wasn't that scared," says one wife. But I had so many appearances I eventually bought a textbook of the Family Law Act and identified the loopholes in the act which keep you on the treadmill.

When my husband flatly declined to turn up for a compulsory conciliation conference, a registrar just said, 'I'm not impressed' ... and that was all."

When her husband didn't obey court orders, she was advised to apply to the Family Court for a contravention of orders.

"But it could cost you another $5000 in legal fees just to get the other party to obey the orders," she says.

"Why should I pay if they won't follow orders? Solicitors just laugh at it. If parties don't show up for compulsory conferences or don't obey orders, they should be fined or arrested and made to pay the cost of the application. I believed every time I walked through those court doors that justice would be done but my QC said, 'It won't be. I've been in this game 25 years and it doesn't work that way.'"

Last month, the Full Family Court warned that, in future, obstructive and disobedient litigants would find themselves denied the right to argue their cases. In an appeal decision on a case referred to as 'T&T', the court found that a husband had been "hell-bent on delaying the trial".

Berry says the case indicates the court intends to take a more stringent view on those who breach case management orders. "But in order for the court to impose a fine or a term of imprisonment," he says "the court has to be satisfied that the person deliberately contravened the order and that it was a flagrant challenge to the authority of the court. It's not yet clear to what extent the court will link such breaches of its orders to such fines or imprisonment."

An experienced Family Court solicitor says the contravention of orders provision does not operate as a deterrent at all.

"A breach of orders will only attract sanctions upon the application of the aggrieved party," he says. "It takes a long time and costs a lot of money.

At worst it will put the alleged offender in a 'show cause' situation and if you can dream up a plausible explanation to offer the judge you probably won't be dealt with at all. If you are, it will be one of those wrist-smack things like a modest fine or a good behaviour bond."

Berry concedes the veracity of these comments.

Another regular tactic is asking for adjournments after the wife has arrived at court with her barrister -- costing at least $2000 a day -- and solicitor, charging $200 an hour.

Both Sheehy and Berry say in that instance, if the delay can be shown to have prejudiced the other party, the wives' lawyers can ask the judge for costs to be reserved against those who cause the delay.

But the Family Court lawyer says in practice judges are reluctant to exercise their discretion in this way and usually send the parties away to return at a later date at their own cost.

"If judges can be persuaded to make a costs order at all, and in my experience it is rare, it is usually for a comparatively modest amount," he says. "If you look at the ledger, it will probably have cost the wife at least $1500 for the wasted day and they'd be lucky to get $300 in costs."

One law wife remarks: "You'll find all our stories are the same: delayed trials, lost papers, award reassessments, all the time cranking the legal bills up and up.

"My husband warned me when we separated that if I didn't do as I was told I'd be sorry. But he was wrong. I'm not sorry, I'm angry."

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