Now that the kids are heading back to school and most of us are putting our heads down and making up for summer slacking, it’s time to get your family legal matters in order. We’ve asked Jo McFetridge, partner at Breakwater Law in Victoria to give us some do’s and don’ts for conducting any family litigation. —Laurel Dietz

The Four Golden Rules of Conducting Yourself in Family Law Disputes

Family law disputes can be incredibly painful, even soul-destroying. After almost five years of practice, through trial and error, I have developed four basic rules of conducting oneself in family law. I try to live by and I encourage my clients to live by these rules. In doing so, I have found family law disputes are made simpler, cheaper, and less acrimonious.  

1. Pick your battles; don't sweat the small stuff

Getting into a war over who gets to keep the five-dollar garden gnome or fighting your ex for being five minutes late returning your child from parenting time is a freeway to misery. You will retain more of your sanity if you focus what limited energy and/or money you have on issues that actually mean something. In my experience, if you find yourself focusing on small things, it usually means you're trying to “win” a family law dispute. There are no winners in family law disputes. The only way to win at family law is to not have a dispute at all. So, compromise wherever reasonably possible, and don't go to war over trivial things.

2. Do not engage in dramatic, rude, or self-indulgent correspondence

Remember that your every text message and every email you write will likely show up in a court document. Treat every piece of correspondence as if it were going to be read by a judge. 

Rude or emotional correspondence is a sign that you cannot control yourself. A judge, reading emails in which you behave like a gorilla, is not likely to think favourably of you. Rude or attacking correspondence can only hurt your case, not to mention your relationship with your ex, with whom you may have to co-parent for the next few decades.  

If your ex sends you silly correspondence, ignore it. Respond only to what is relevant and necessary. Keep correspondence brief, informative, friendly, and firm. Always respond with immaculate courtesy. Don't fall into the trap of responding in kind, because if you do, you lose the high road and thus the advantage. 

My face still burns with shame when I think of some of the ridiculous letters I sent out in my first year of practice, before I knew any better. 

3. No mudslinging; do not participate in a race to the bottom

By all means, put before the court examples of your ex’s behavior, which are actually relevant to his or her parenting capacity, or are otherwise legally relevant.

Inflammatory affidavits full of irrelevant allegations are worse than useless; they harm your case. Silly affidavits signal to the reader that the party has a weak case, because s/he needs to resort to distracting irrelevant information to get the judge's attention. In my experience, these types of affidavits only attract the unwanted kind of attention from a judge, and they call into question your own character, credibility and judgment in slinging mud around.

If in doubt about whether behaviour is relevant or not, speak to a lawyer. Family law duty counsel is usually available at the courthouse, and for no charge.

4. Do not encourage children to believe they are in charge of parenting arrangements; it will destroy your child

There is a fine line between asking a child his or her views (which is usually appropriate) and putting a child in charge of the parenting schedule (which is entirely inappropriate). Children generally know exactly what their parents want to hear, and will tell it to their parents, because they just want their parents to be happy with them.

It does not mean that what your child is telling you is in fact the truth. Telling a parent what he or she wants to hear is a way a child can please all parents at once. Once parents tell a child he or she is responsible for deciding how much time to spend with each parent, the child is forced into a dilemma, where no matter what choice she or he makes, the child will make one parent happy while necessarily and simultaneously making the other unhappy. This is a no-win scenario, and it is psychologically damaging to a child.

It is parents, not children, who are responsible for the conduct of a family law dispute. You cannot abrogate your parental responsibility to take charge of an adult dispute by delegating decision-making power to your child. Not only will you lose control over your family law dispute, which is a serious tactical error, but you will also subject your child to lasting psychological damage. This is absolutely unacceptable. If you see it happening in your family law case, even if you realize that you're the culprit, don't get defensive, just take immediate action to prevent further harm to your child and seek professional help.

Guest columnist Jo A. McFetridge is a partner at Breakwater Law, practicing primarily in the areas of family law, civil litigation, and business law. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.