Tuesday, 22 February 2011

Family Court: "Litigation never brings out the best in people"

Wizened and cynical family lawyers say that there are three versions of what happened: "His. Hers. And the truth."

I don't have such a cynical view. One of the basic tasks of a family lawyer, in my view, is to ensure that the matter is prepared thoroughly. One of the most important parts of this process is to proof witnesses. This means when preparing a statement or affidavit of the witness, or even when sending letters to the other side, to have your wits about you and to test the assertions that are being made by your side as to whether they seem truthful or not. Check. Double check. It also means if necessary checking details against a known source, eg documentary evidence, to see whether the witness is likely to be telling the truth.

Justice Fowler stated in the recent Family Court case of Kirshaw and Trowell:

Litigation never brings out the best in people and in this case it seems that no exception is found.

His Honour also stated about the father and mother, in ways that reminded me about the saying by the wizened family lawyers:


The mother gave evidence in a fashion which did not inspire confidence. Her reluctance to answer the question asked and instead to provide a statement or history unrelated to it continued throughout the giving of her evidence, notwithstanding a warning from the bench that the apparent avoidance of questions would not stand well for her in the assessment which had to be made of her credit.

Her willingness to make any statement which she thought might support the Court’s view of her application for relocation demonstrated a depth of desire in relation to that outcome but again did not inspire confidence that such promises as were made in evidence were likely to be sustained with the same enthusiasm. Her avowal of benefits to the child in the proposed relocation did not, with some exceptions, seem to the Court to be other than the repetition of slogans, such as “the move will advance the best interests of the child” or words to the like effect.

Nevertheless, much of her evidence rang true. I therefore do not make a blanket ruling about her lack of credibility that would dismiss all her evidence. My findings as to credit are reflected in my findings of fact from which it will be apparent as to the evidence I prefer.

The father’s evidence was not free of combative responses and answers to questions which avoided them. However, in this regard he was less committed to the practice than the wife. For example, he admitted errors in his affidavit material on more than one occasion. The father gave evidence that his Italian heritage tended to perhaps make his speech more histrionic as compared to his Anglo-Saxon counterparts. I think that there is some truth in that but it can be but a short step from histrionic articulation to speech which might to some seem intimidating or threatening. His denials were prompt and emphatic and he was not shaken from many of them. I do not, as I am urged to do, take into account the prompt and straightforward nature of his denials as evidence of a lack of credibility, however once again, I make no blanket finding on credit in relation to the father’s evidence except to say that in the Court’s opinion, where it conflicted with that of the mother, it was on many occasions the evidence of the father that the Court preferred.


1 comment:

Malady said...

Do you not sometimes worry that these judgements could be skewed by the acting abilities of one side, and the nervousness or stress levels of the other?

It seems to me that there is a distinct lack of science in some of the first instance judgements I am reading lately...