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07 March 2024

What expectations should I have for my family lawyer?

In this week's video, family law partner Justine Woods talks about what you ought to expect from your family lawyer.

In this week’s video, family law partner Justine Woods talks about what you ought to expect from your family lawyer.

Video transcript

Hello, hello, everyone. I’m Justine Woods. I’m the family law partner at Cooper Grace Ward and my topic today is what you ought to expect from your family lawyer. Now, naturally, I’m not going to talk about expertise or quality or experience or price. I’m really focusing on what should the experience be like for you and what you ought to get out of it.

Family lawyer should ask you questions

So, the first observation I’d make is that your family lawyer should ask you a lot of questions. I’m often consulted for a second opinion, and more often than not, the client comes across to me. And so some of my observations today, I’m drawing from that experience. So, your family lawyer should not be talking a lot about themselves, about their experience. In my view, they should be asking you questions. I always say to my people, now, would you like to tell or ask me some things initially, or shall I interrogate you for the information I need? Because advice is wholly predicated on the facts of your case. Lots of people will have Googled before they come to see me. They will have talked to their friends, to people who’ve experienced divorce in their families and some of their experience and advice might be valid, but it’s not quite the same as advice from your family lawyer, once they have your detailed instructions. So, I think expect to have your privacy imposed upon somewhat. So, there might be very easy questions you can answer: What did you each have when you got together in terms of assets? You might be asked very intrusive questions about, well were you having sex even though you were separated under the one roof. What did other people think about that relationship? Did they recognise you as a couple? Was there domestic violence? Et cetera. Now, if you see an experienced family lawyer, I have later in my career, then asked the question, is there something that’s worrying you that you’re not telling me? And the answers have ranged from, I was raped as a child repeatedly by my brother and my wife is threatening to tell everyone in our circle, to the two families in the street, they’ve swapped couples and they’re threatening to tell everyone in our business community about that having gone on, or the two children in the middle of our four children aren’t the other person’s children. It could be any number of things. So, you do want someone who’s onto the issues that underlie what you say, and I’d encourage you, provided you have proper rapport and trust in your family lawyer to be honest, because the advice that is given to you is wholly based on what you tell your lawyer because the facts determine the outcome.

The other person’s attitude

Now, of course, there are all the variables about what is the other person’s attitude. If you’re trying to argue  a particular issue, as I’ve dealt with in many other videos, it might go one way, it might go the other. Both in children’s and property settlement matters, there’s no absolutely clear course of authority on many issues, such as, is this going to be regarded as a springboard to the parties wealth in the future, or is that initial contribution going to be eroded over time? That’s just one very basic example. But the advice that you’re given is based on what you say. So, if you conceal things and sometimes that’s out of embarrassment, but be as forthcoming as you can and ask a lot of questions yourself because I don’t think it’s the job of the client to be asking the questions. Really I should be putting that information to the client. But if you’ve got questions, absolutely, ask them.

Expect to be told things

The other thing is that expect to be set some jobs, right. Your family lawyer should say to you: you need to collect this information and these documents for me, sometimes the suggestions are things like, have you thought about therapy? Have you thought about financial advice? Have you, and I’ve had to say many times over the years, have you thought about getting a job? Or if you want this outcome, have you thought about increasing your hours of work? Or if your job imposes on the weekends and we’re trying to argue for more time with the children, can you restructure that? And then other times I say, for example, and this is very annoying, of course, to the other side, I say, well, you need to do these things to improve your relationship with the children and your availability to them and so the very behaviour that the other person’s been complaining about for years suddenly disappears, that parent’s available all the time. So, expect to be told to do things. Sometimes there are absolutely options available to you and you get to choose between them. Of course, you get to choose at all times, you know, you’re an adult giving instructions. But if you’re coming for advice, then in my view, you should be presented with options, recommended the best and given the rationale why and then follow it to the extent that you can. Now, I’ve had clients, for example, who I’d say, well, if the other side is coming with their new partner whom you hate and someone has told you is a pedophile, do you really think going to the gymkhana and potentially getting into a fight is a good idea for your children? No, no, I’ll maintain my calm, Justine it will be fine. Now, this is many years ago and things were more permissive then, I’ve got to say. But of course, he did get into a fight, including a punch up where he’s punching the other side through the window of the car. So, sometimes you won’t be able to take the advice. I hope not. But that that does happen sometimes, but expect to be given it. I really think and I see so many people who say, well, I haven’t been told anything. The lawyer’s advice was just to wait and see what happens and to see what the other side says. So, unless you’re absolutely missing every piece of information about your own matter and I have had clients who don’t know anything, for example, about their finances, you really should be given in the very early phases absolutely specific advice about your entitlements and your options. Now, it’s not going to be a one dollar figure or one percentage figure. It’s going to, it ought to be a range because the court can give you a range. So, it needs to be fluid but specific. And you ought to also be explained to you the principles that apply to you. What does the family law act say about the issues that are needing to be decided in your matter? And what is the process?

Updated court mandations

Now, since September 2021, the court has mandated through its rules what most lawyers did previously in a financial matter, disclosure, valuations, mediation and only then would you go to court unless there was some urgent issue. And for children, discussion, negotiation, mediation and again, go to court only then if you need to. Now, the court says in the absence of some pressing circumstance, that is what you must do. So, you need to have that explained to you what that means for you, what work, what expense, what time that’s going to take and leave with a plan. Now, it’s our it’s advice about your entitlements and options, and it’s a strategy of how to move forward. So, by the time people leave, they should have an idea of what their case theme is, in my view. So, for example, that might be, you have a long marriage with children, your contributions appear to have been different but equal, there’s a disparity between you for these reasons and in my view, that warrants an adjustment in your favour or in favour of the other party of this range of magnitude. And this is what we have to do to get that sort of outcome. And it’s not fixed, but it will be within the range. And an understanding that the case theme may change over time and that the strategy may alter and will certainly be affected by the other person’s conduct by new pieces of information that come to light. But to give you a framework to move the matter forward. Now, whether you like this or not, it’s also my view that you should be expecting to be largely told what to do and given a choice within that framework, and that you should not be allowed, now ‘allowed’ I use very loosely, to do what you like because your natural response and it’s everyone’s natural response, I find, is when heartbroken or angry or abandoned or desperately worried is not to be that rational, not to be very co operative, to want to talk perhaps to the children about how terrible the other parent is and they’re leaving is an abandonment of them as well. So, all those very natural feelings that many people have really ought to be suppressed. So, if your lawyer doesn’t give you specific advice about what you should not be doing, then I think you’re doing yourself a disservice. They also shouldn’t let you write your own letters or your own court documents.

Appalling written comments from the client on the other side

Now, over the years I have read some appalling things which are plainly written by the very upset, perhaps slightly deranged client on the other side, for example, things like the mother was not a care giver, but a care destroyer. All sorts of emotive conclusions. I’ve had matters where without testing it, the mum, the one parent who was mentally ill, had accused the other parent of allowing the children to eat slugs. So, if your client, I have lots of clients who are very unwell and I say, can that be right? Let’s talk about that and could that possibly have occurred? So, expect to be tested, expect to have what you think is reasonable tested. I’ve had lots of clients over the years say to me things like that, but Justine, I agree. And I say, agreement requires two people. What you’re telling me is that you’ve put up a set of proposals that you think are appropriate. That’s not agreement. You need the other side’s co operation. So, your family lawyer should understand that you’re probably not in your optimal operating zone and that you’ll need help and I think a measure of comfort. Now, we’re not we’re not counselors. I’ll be the most expensive counselor anyone could ever see. And I have had to say to clients in the past when they ring up and say, do you think that I should buy a $5,000 G star iron. I said, absolutely not. I don’t even know what it is. But also, I’m not the right person to be asking. But you should be able, in my view, to seek both normalisation of the pain you might be experiencing and then refocus on the legal strategy, on your case theme and getting you to the other side.

Open communication with your family lawyer is crucial

Now, of course, it’s a human endeavor. Things aren’t always going to go beautifully, but you need to be openly communicating with your family lawyer, receiving the information. I mean, I’ve had to say to clients, if you’re ringing up for legal advice, then please, please listen. If you’re just ringing up to tell me what you’d like to do, that’s not really helping you and you can do it yourself. And that sounds very brusque, but it’s intended to be. I’m here to look after you. I’m not here to tell you what you want to hear or do exactly what you say you want to do. And there are some letters that for example, I won’t write or paths I won’t take. I, for example, have refused to file a contravention application, which I knew was doomed for my client, and I sent her away. I said, I’m not taking your money, I’m not taking your instructions. I can refer you to someone else. And in the end, she did it herself and of course, everything that I said would happen, happened to her. Now, that’s and of course, I’m not omnipotent and know everything that’s going to occur, but it’s kind of within a certain band, it’s a predictable outcome. And so if you’ve got the right person, you should be within that band.

So, if you’d like to talk about any of the issues that I’ve touched on there, you’re most welcome to  Contact Cooper Grace Ward.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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