- Introduction
- The Friday afternoon email
- Threatening costs
- Ignore your evidence
- State your ex’s allegations as fact
- Not respond to you
- Conclusion
Introduction
I’m not going to lie to you – going to court for your children or finances can be stressful. It’s natural you’re going to be sensitive about what is happening or what you think is going to happen. Most of it isn’t malicious even if it seems it is.
The lucky thing?
Whether your ex’s solicitor is doing what they’re doing to play mind games with you or not there are things you can do and even better than that, understanding why things happen the way they are can make it even easier.
Often it’s more `cock up than conspiracy’: Your ex’s solicitor isn’t out to upset you. Sometimes it may be a lack of understanding of how it feels to be a litigant in the family law system when the fate of your children or finances is at stake. Solicitors don’t wake up wanting to ruin their client’s ex partner’s day.
Let’s get on with those 5 things. What happens, why it happens, how you should respond and how you can get your head around it.
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The Friday afternoon email
We’ve all been there. It’s been a long week. The weekend is looming and everyone is leaving the office for a couple of days off where everything will be shut until Monday morning rolls around.
You’re at work and it hits you.
An email from your ex’s partner saying a court application has been made, they’re suspending contact immediately and not to collect the children, they’ve written a letter to the court accusing you of something horrible, etc.
There’s nothing you can do. You’re at work. you can’t get hold of your McKenzie Friend, your solicitor doesn’t have any availailability to next week and your plans are now ruined. You need some R&R over the weekend and instead you’re going to be a bundle of nerves until you get the reassurance and/or information you need.
It could be nothing – just routine stuff. It could be that the contact you’ve been looking forward to isn’t going to happen or your imagining being dragged into Court again.
Either way. Everything is on hold.
I don’t know if this is a real tactic. It could be the same sort of thing as the traffic lights always being red, slow drivers on the road when you’re in a rush and the last people at the cinema to arrive being the ones in the middle of the row meaning everyone has to stand up to let them pass – it’s called `confirmation bias‘ – because you won’t be taking note of the email you get any other day of the week…just the ones that are going to leave you not able to do something about it immediately.
In truth, there are few things that won’t wait. If it’s a case of something like your ex partner deciding they’re going to break an order or prevent your children seeing you, there is nothing you can until a Monday morning (although an email back reminding them that the order is to be followed and you’ll be there to collect the children as usual, etc.) what you can do is document things to use in a future hearing.
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Threatening costs
Courts can order costs. In short, that’s when one partner is made to pay the legal fees of their ex partner.
It does happen. But it’s rare.
It happens when the court considers a party has acted unreasonably. This can include:
- Unfounded allegations are made.
- Not showing up at hearings/dragging cases out.
- Refusing to attend mediation.
- Using a case to financially punish an ex partner.
Many litigants will feel their ex is doing one (or more!) of the above. This does not automatically mean you will recover costs however and should not be your `go to’ in your case. There’s some simple reasons costs are unlikely to be ordered because it:
- Can further inflame an already tense situation.
- Takes money away from a parent to provide for a child.
- Can dissuade someone from making an application that does have merit.
As always, in child matters the best interests of the child are the most important consideration so the big question to ask when it comes to asking for costs is `Would this benefit my child or not?’
If you have a McKenzie Friend or a solicitor you’ll benefit from telling you whether they think it is likely you will face costs are not. There are no guarantees of course. But it’s something to bear in mind.
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Ignore your evidence
For a court hearing to be effective, all the relevant evidence needs to be before the Court.
Speak to enough litigants in person and they’ll tell you horror stories of bulldog solicitors who did their utmost to make sure the judge in their case didn’t see the killer piece of evidence that would have swung the case.
I’m on the fence with this one. There are various reasons a piece of evidence can be excluded that I can think of. These are (ranging from the most to least reasonable):
- It’s not being submitted in the right way. I’ve seen many people turn up to a court hearing with a single copy of a document they insist the judge needs to see, handing it over on the day and insisting it be talked about now. It may be that the hearing you’re there for isn’t the right sort (a directions or review hearing for example). It may be that the other party hasn’t had sight of it – and it would be unfair for the Court to make a decision on a document all parties haven’t seen. It could be that the evidence needs the permission of the court to be included (there are clear rules on this within Practice Direction 27A).
- The solicitor compiling the bundle doesn’t agree the contents with you. Practice Direction 27A (again) says in paragraph 3.2 `The party preparing the bundle shall paginate it using Arabic numbering throughout. If possible the contents of the bundle shall be agreed by all parties‘ and also (in paragrpah 4.1) `The bundle shall contain copies of only those documents which are relevant to the hearing and which it is necessary for the court to read or which will actually be referred to during the hearing‘. The upshot of this? You could find the documents you want in the bundle not in the bundle. If the solicitor then goes onto ignore paragraph 6.1 (`The party preparing the bundle shall, whether or not the bundle has been agreed, provide a paginated index to all other parties not less than 4 working days before the hearing‘ leaving you to be handed a copy the night before, the day itself or not at all you’re going to be attending a hearing without the documents you require. In cases like this it is almost a certainty that your hearing will go ahead and complaining will make no odds.
- The solicitor ignores you completely. I’ve seen this happen too.
The take home from the above is to make sure you aware of what the rules are on evidence. Be prepared to submit evidence to the court directly if the other party’s solicitor is the road block here.
When it comes to the Court ignoring evidence however, you are going to have a trickier time dealing with things. If you are convinced that evidence you have submitted has been ignored, that it should not have been or it would have made a different decision if it had seen so – you may have grounds to appeal. If this sounds attractive, bear in mind that appealing is a last resort and there are lots of good reasons not to and few when it is the right option.
It could be that you just plain disagree with the order – that your evidence wasn’t ignored but just didn’t swing the case in the way you would have hoped.
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State your ex’s allegations as fact
This is a simple one. But I get it.
It’s easy to read a letter, in a seemingly arrogant tone, on an official letterhead stating categorically that you did (or didn’t) so something you know for a fact is untrue. You’re emotional, worried and hurt – so you may fixate on it.
A good way to reframe this in your head is to keep in mind that the letter (or email) you are reading are merely the views of your ex partner, albeit delivered in an expensive and legalese format. It means nothing in itself. It’s often worth refuting allegations rather than feeling the need to address them one by one (unless a court has ordered a Fact Finding hearing to explore them).
Stay focused. As a litigant you need to keep in mind what you want the Court to order, rather than be sidetracked by things that are only going to cost you time, money and heartache. If something didn’t happen – say that and move on.
There is only person’s view that ultimately counts and that is the judge’s.
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Not respond to you
Communication is king – but you can’t force someone to speak to you.
I’ll be honest. It’s not your ex’s solicitor that isn’t responding to you…it’s your ex. Your ex’s solicitor is their representative. So if your ex partner is not speaking, there is not much the solicitor can say. In fact it is wrong of them to act without instruction. They aren’t permitted to act without instruction.
So in a scenario where you contact your ex’s solicitor and get no response at all…it’s your ex partner who isn’t communicating. Some solicitors will counter this by sending a response thanking you for your email or saying they have read what you have said and understand, but there’s little more they can do here.
Getting annoyed at this – and possibly lashing out at the solicitor is merely `shooting the messenger’ and isn’t going to help you.
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Conclusion
I’m not saying some solicitors don’t do things to get under the skin of the other side (although I suspect many legal professionals would take great offence at this if they’re reading this) but it’s by no means the explanation for everything.
It’s possible you don’t understand the process. It’s possible you’re sensitive to it. It’s possible that it’s more `cock up than conspiracy’.
Getting upset is a natural reaction, but a level head is the best basis to make decisions concerning your court case. If you don’t trust yourself to do that it’s worth considering if you need the help of someone like us or else a solicitor.
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