Attwood Marshall Lawyers Family Law Special Counsel Michael Twohill joined Robyn Hyland on Radio 4CRB to discuss the Depp v Heard trial that put domestic and family violence centre stage, and what lessons we should take away from it.
Lesson 1: Credibility and conduct counts in a legal dispute
The Johnny Depp and Amber Heard trial which played out in the public eye was a complete circus. Private, absurd, and disturbing evidence was brought to light for all to see, with social media and the public hungry for more. Johnny Depp appeared to attend the trial relaxed and in control, while Amber Heard on the other hand fumbled over her words, and was inconsistent with her recollection of events, leaving her open to being criticised for seeming ingenuine and dishonest.
We see this in family law-related matters frequently, and whether or not a legal dispute garners the attention of the public, something we can learn from the Depp v Heard trial is that credibility and conduct are key components when navigating any legal dispute and these factors can play a significant part in how legal matters play out.
Lesson 2: Don’t fear public scrutiny
Unlike what was witnessed in the Depp v Heard trial, in Australia when it comes to family law disputes, most matters are resolved early on and don’t require going all the way to trial.
Australian Institute of Family Studies has estimated that about 3 per cent of parents who are unable to resolve disputes by alternative dispute resolution strategies use the court system to do so.
Those that do end up in court usually involve complex issues such as a history of family violence, mental health concerns, substance abuse, and emotional abuse.
But for most matters, Australia’s Family Law system has the foundation in place to encourage early resolution whenever possible. This has been particularly the case since the 1st September 2021, when the courts amalgamated the Federal Circuit Court and the Family Court and bought in new rules and regulations that are specifically designed towards trying to reach resolutions via mediation and assist people to avoid having to go to court.
By resolving matters early by negotiation, conference, or mediation, families can stay out of the courts which means the public won’t hear anything about the matter.
For those that do go to court, there will be records of the matter which are accessible to members of the public.
The policy of “open justice” is reflected in section 97 of the Family Law Act 1975, which provides that all proceedings should be heard in open court.
There are exceptions to that rule given the special nature of family law proceedings. Matters which involve children require that a balance be struck between the need for open justice and a family’s right to privacy. Section 121 of the Family Law Act makes it an offence to publish proceedings that identify persons or witnesses involved in family law proceedings. “Publication” also includes social media posts.
When it comes to the media, they generally only attend court proceedings when the matter is seen to be a matter of public interest, which will usually be if the matter involves a high-profile person, such as a celebrity or politician.
Lesson 3: Speak your truth, but choose your audience
Although the Depp v Heard defamation case received worldwide attention, domestic violence allegations resulting in defamation claims are certainly not new.
There was a case in Western Australia several years ago that involved an estranged wife being sued by her former husband for defamation.
The dispute was over a Facebook post she published that suggested she was a victim of domestic violence.
Although the ex-wife removed the Facebook post after she received a letter from her ex-husband’s lawyer requesting to do so, her former husband argued that the post caused people to doubt his character and that he was concerned the post would affect his teaching career.
In her defence, the ex-wife tried to argue that although she wrote the post, she did not intentionally publish it. She claimed that her computer must have been hacked for the content to be posted on Facebook.
Unfortunately for her, that argument didn’t cut it!
The Judge found in favour of the ex-husband. This judgement came down to the fact the Judge found the ex-wife’s claims of how the post was published to be “implausible” which undermined her credibility and ultimately meant it could not be found that she was in fact a victim of domestic violence based on her word alone.
Just because she lost her defamation case does not mean she was not a victim of domestic violence.
By no means should this be a deterrent to take action to stop domestic or family violence, and to tell your story and hold someone to account for their actions. It’s important, however, to ensure you carefully choose the right platform and audience to do so. Splashing details on social media may feel like an ideal outlet at the time but be very careful about what you publish about someone else in this space.
Lesson 4: Domestic and family violence matters are complex
This is a significant time for survivors of domestic and family violence, and for women’s rights in general. There has been a lot of noise since the Depp v Heard trial claiming this will be a huge setback for domestic violence survivors.
Hopefully, this is not the case.
We do have a long way to go to improve domestic and family violence issues in Australia, and abroad, and must stay focussed on what changes need to be made to reduce violence from escalating and support those suffering.
If nothing else, we should take this high-profile case as an opportunity for awareness and education.
Johnny Depp and Amber Heard had a very volatile and public relationship. High profile or not, what the evidence showed was that domestic violence matters are often very complex and may involve a combination of physical violence, psychological and emotional abuse, and financial abuse.
This case highlighted that mutual abuse can also exist in relationships. Neither party were completely innocent, and the evidence showed this.
It also showed that men can be victims of domestic and family violence. That’s not to say Ms Heard wasn’t a victim, as mentioned, it is apparent that mutual abuse took place.
Perhaps this case can help break through the stigma for men that are victims of domestic and family violence, to speak up and seek the help they need, without taking away the voice of the countless women who have also survived domestic violence.
Lesson 5: Expert legal support is vital to effectively resolve disputes
There are ways to prepare for court, mediation, and other forms of dispute resolution, to put yourself in the best position to succeed.
No matter which avenue you choose to resolve a legal dispute, it is vital for clients to be upfront and honest with their lawyers. A lawyer representing their client should know everything. It is never good for a lawyer to find out things about the matter in the middle of a court case.
If this happens, the client’s credibility can be destroyed, and it can ruin their case.
Any litigation requires a skilled legal team. Whether it be a matter such as defamation, or family law disputes. In the Depp v Heard trial, it was clear to see which team did their research and was better prepared, performing better in the courtroom.
The conduct of both parties also plays a big part.
It is common to see self-represented litigants set themselves up at a disadvantage because they choose to argue their own case and are up against experienced and skilled legal practitioners.
There’s a saying; “he who has himself for a lawyer has a fool for a client”.
When a self-represented litigant tries to argue their own case, this usually results in the matter being dragged out, additional and unnecessary legal costs being accumulated, and a delay for all parties being able to move on with their lives.
Similar issues can play out when an inexperienced or unprepared lawyer steps up to defend their client.
Experience counts for everything and can make or break a case.
If you are facing a legal battle, make sure you are supported by a legal practitioner who practices exclusively in their chosen field to put yourself in a position where you will be able to present your case effectively, negotiate with purpose, and hopefully achieve your desired outcome.
Attwood Marshall Lawyers – Experience and expertise to help resolve family disputes effectively
Our difference is that unlike other generalist law firms, Attwood Marshall Lawyers have a dedicated team of lawyers who practice exclusively in family law and domestic and family violence matters.
Our team are driven to resolve matters at the earliest opportunity, to reduce conflict between parties as much as possible, so that all parties can move on with their lives quickly.
If you are going through one of life’s most toughest fights and need an experienced family lawyer on your side, contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email email@example.com or free call our 24/7 phone line on 1800 621 071.
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