Why file on time?
Many moons ago, while I was still a banking lawyer, a family lawyer friend told me that no-one ever files documents on time in the family court. I thought that was a little odd, but didn’t think much more about it. Fast forward more than a few years and I’ve discovered that she was right, and it’s not good.
My friend, Ginny (not really her name), was self-representing in family court proceedings with her ex-husband, Guy (also not his name), who was also self-representing. Guy’s go-to move was to wait until a few days before each court event before filing any material. Three days before the final hearing and Ginny was still waiting to find out what fresh hell Guy would heap on her at the last minute.
Unless you’ve been in a toxic relationship, it’s hard to understand the impact this kind of behaviour has on your psyche. So, I thought it might be worth explaining.
Ginny and Guy’s story
When they were together, Guy never physically abused Ginny. But he often employed one of the most effective techniques in an abuser’s toolbox: unpredictability.
Like the time Guy and Ginny agreed to meet at their daughter’s end of year pre-school concert. Ginny was coming from work and Guy from home so they agreed to meet at pre-school before the concert started. As usual, Ginny arrived on time but Guy was late. So Ginny saved him a seat next to her. As the room filled and start time drew closer, Ginny felt bad and let another parent take her saved seat. As the show began, Guy was nowhere to be seen.
An hour later, Ginny turned around and saw Guy standing at the back of the room. His face was inscrutable. She had no way of knowing whether he’d apologise for being late or whether he’d be angry at her for giving away his seat. As most abuse targets do, Ginny’s brain began assessing how to respond to each possibility. Particularly, what to do if he caused a scene and berated her for not waiting for him.
As Ginny stood to leave, Miss Three ran to her, flung her arms around her and asked whether she liked the concert. Ginny returned the hug and made positive noises, but her mind was busy trying to figure out how to deal with what might happen when she walked to the back of the room. In that moment, Ginny’s attention was not on her daughter. It was firmly on Guy and what he might do next.
Without saying a word, Guy had controlled Ginny and ensured that her attention was on him alone. Even at their daughter’s concert.
If Guy was predictable, his control of Ginny wouldn’t be quite so complete. If Ginny knew that Guy would be angry with her, she could take protective measures, like leaving the room from a different door. But because Guy may have greeted her with a kiss and an apology, to evade him would have seemed churlish or aggressive. Which is why unpredictable spouses are more dangerous than angry ones. Because you never know what they’re going to do next.
In fact, Ginny could never have anticipated what Guy did next. He told her very quietly how disappointed he was that his wife had ruined their daughter’s day with her selfishness. He told Ginny that he needed to take some time to process what had happened, and that he would take his new car for a drive to the country. Guy didn’t come home until two days later.
When you understand this history, you can understand what happened in court between Guy and Ginny after they separated. Guy continued his abuse by constantly filing the required documents and disclosure late. Thus ensuring that Ginny had no idea what case he was going to argue or what documents he would provide.
Before they separated, Guy had told Ginny a number of times that if they ever broke up, she would end up penniless and with access to their daughter only on weekends. Each time a court date passed without the required documents being filed, Ginny’s mind went straight to the possibilities of what Guy might be planning.
Was he strategically not filing to mess with her, was he planning to file an injunction or other process in the property matter, or is this the moment when he’d bring up some historic medical issue which meant the court would take her daughter away?
By the time they got to the final hearing, Ginny was a mess. Guy, cool as a cucumber: completely in control. And Ginny settled for whatever he asked for just to stop the torment.
Family lawyers do it too
Unfortunately, Ginny and Guy’s story in not unique in family court. But the revelation for me was to discover how often it’s not self-represented litigants who miss court filing deadlines, but family lawyers.
The first time it happened, I assumed that the lawyer for the other spouse had accidentally missed the deadline and waited for them to file. They did not, until two days before the hearing. So I emailed to remind them of the next event. This time they filed on the day of the hearing.
I’ll admit, I started to get a little cranky.
After one particular lawyer missed yet another filing deadline in a parenting matter involving domestic violence against my client, I asked for a costs order against him. The lawyer told the court that he hadn’t read the orders requiring the filing. The registrar told him that was understandable: “it happens to all of us”.
The same lawyer missed the next deadline and filed on the day of the court event, which was an interim hearing. I again asked for a costs order to be made against him or his client. The court told me that, although it was a nuisance for my client, there was no harm caused by the late filing and no costs ordered.
My crankiness morphed into anger. I felt that the lawyer was “doing a Guy” and filing late on purpose to mess with my client and obtain a strategic advantage in the court proceedings. It was threatening to seriously undermine my relationship with this lawyer and my faith in the court.
Fortunately, I met with a group of lovely family lawyers a few days later. I asked them whether they ever filed late in the family court. “Sometimes we don’t file at all,” was one response. Another: “if we know mediation is happening or we think it’s going to settle, we just don’t file the required documents”.
The lawyers who said this practice in family law because they love helping people and making a difference. And it dawned on me that most family lawyers, and the court, don’t think late filing is a big deal because they don’t realise the impact late filing has on a target of intimate abuse.
So that’s the purpose of this long and rambling post. It’s not for family lawyers who file late to obtain a strategic advantage (and will continue to do so). It’s for those of us who are trying to do some good in a very difficult field. Thank you for being you.
But please understand that filing on time is critical to maintaining the integrity of the family court, and in creating safe boundaries for abuse survivors who need the court’s protection. Filing on time helps ensure that the human on the other side knows what to expect. And to ensure their experience of domestic abuse isn’t replaced with legal abuse.