One of the things that clients pay lawyers to do, is to help them ‘craft their case’. What that means is that lawyers take all the facts that their clients give them (plus any facts provided by outside evidence or even the other party) and establish a ‘case theory’. 

Case Theory

Before you can build a case theory you need to look at: 

1.  The evidence – what evidence is there, how strong is it, what other evidence contradicts?
2. The facts – what facts does the evidence prove? 
3. the law – based on those facts, what legal principles will be applied?
4. the outcome – what outcome is likely based on the above?

Then you can figure out what story you are telling the Court. And by story, I don’t mean a made up fairy tale. I mean, what is the core of the case? Is this a case about two parents who just dislike each other so much they cannot effectively coparent their children? Is this a case about a controlling and abusive husband who the children and wife need protection from? Is this a case where the child has special needs that only one parent can meet? Is this a case where one parent does not have good parenting skills and needs to improve them? 

 The case theory you have can make a big difference to how your case is dealt with in the Family Court. 

An example

A recent Full Court of the Family Court of Australia case really brought this to light for me. 

In Cimorelli  & Wenlack a mother appealed from interim orders made by the Court. 

One of the things she tried to challenge was  the Judge’s findings about whether the father had hurt the children.

However, the Court was quick to point out that risk from the father wasn’t actually an issue in the case and the mother accepted that there was no risk because, 

“First, it was implicit from the mother’s proposal for the children to resume living with the father for equal time.

Secondly, she did not contend in her Case Outline document that the children needed protection from any risk of harm to which they would be subjected or exposed in the father’s care, as a primary consideration under s 60CC(2)(b) of the Act.

Thirdly, during oral submissions, the mother’s lawyer did not correct and took no issue with the primary judge’s understanding of the mother’s case, as this excerpt of the transcript shows:

HER HONOUR: The mother says that the father doesn’t pose any risk to them. She proposes orders that they live back with him.
[COUNSEL FOR THE MOTHER]: And that is a means of resetting arrangements until such time as there is a new expert before the court, at which time we will, no doubt, be back here again to consider where we go from there.
(Transcript 1 November 2019, p.96 line 46 to p.97 line 3)

Fourthly, in the reasons for judgment, the primary judge confirmed the mother accepted there was no concern about the father’s capacity to properly care for the children (at [126]) and the mother did not contend in the appeal that statement had misconstrued her case.”

It’s so important to get clarity in your case early. Building a case theory will help you do that.