General

GENERAL

FAMILY LAW, FAULT AND CONSEQUENCES

July 7, 2017

Relationship breakdown hurts. We naturally want to blame someone. Sometimes we want that blame to have legal consequences.

I’m an Australian lawyer. Therefore, I grew up professionally learning that, in Australia, we have had a “no-fault” divorce system since 1975. If you want a divorce, it doesn’t matter whether the relationship broke down because of infidelity, cruelty, violence or simply because partners no longer love each other. Unlike the U.K. and Ireland, all the law requires is that the relationship has broken down irretrievably. The evidence of this is that the parties have been separated for 12 months.

This doesn’t mean that conduct or behaviour is not relevant to other matters, such as decisions about children and the distribution of property.

While the family law doesn’t talk about “fault” or that one person is good and the other bad, relevant conduct might have a bearing on outcomes. Sometimes, one party’s conduct will have consequences for a particular aspect and the other party’s conduct will have consequences for something else. Often clients (or their families) find it hard to see the difference between relevant and irrelevant conduct. They often want the other side “punished” because they are, or are not, something; unfaithful, aggressive, lazy, not a good provider, gay, straight, a different race or religion, suffering from an illness or addiction. These things are not, of themselves, relevant.

The Family Law is only interested in the consequences of behaviour for the purposes of the decision being made. So, all because someone is any one of the things above, might not mean that they are a poor parent. However, someone being aggressive around the children might have consequences in terms of how the children regard them and whether there is a risk of physical or psychological harm to the children. This, in turn, will influence the time and conditions on which that person will be able to spend time with the children.

In property settlements, there has been a lot of discussion and change through the cases in relation to the deliberate dissipation of assets during the case; what is regarded as wasteful behaviour and what should be the consequences. There has also been a lot of discussion in the courts about whether family violence should somehow be reflected in a property settlement.

Sometimes doing nothing or not taking action early can also have consequences that will be legally relevant when the matter comes to being resolved.

So, like so many matters in Family Law, it’s important to get advice from an experienced family lawyer, sooner rather than later.

Can’t Afford a Lawyer?

December 2, 2016

But can you afford not to have one?

A good family lawyer resolves your case faster and more effectively than you can do as an unrepresented litigant.

I often come across people who have decided that they can’t afford a lawyer and represent themselves. Then they consult me when things go really wrong (like a judge telling them in court they’d better get a lawyer) or their Family Law case has not gone the way they had hoped or expected.

Often they are heartbreaking cases where the outcomes could and should have been different if they’d just had an understanding of the legal system or a lawyer representing or advising them or drafting their documents, so that relevant information is considered by the Judge and they don’t lose out to “a technicality”.

It costs a lot to consult a lawyer, accountant, physiotherapist or any other professional. (Not to mention tradies). How much depends on the issues, complexity and level of dispute in your particular case. Your fees can range anywhere from just over $1,000.00 to tens (and in some cases hundreds) of thousands of dollars. It all depends on what’s involved in your case, how it progresses and what your expectations are.

I find people who represent themselves in their Family Law cases often blunder through the process, not understanding the logic or the significance of particular steps, each time turning up at court expecting one thing to happen but finding something else happens, often because they have not prepared properly for that type of court event.

Should your case be in one of the country circuits (Warrnambool or Ballarat in particular) where it is likely to be finalised more quickly or should it be in the Melbourne Registry? Are there crucial issues that need to be dealt with urgently or can it all wait for final hearing? Are you and your former partner able to negotiate effectively?

An experienced family lawyer will be able advise you about the likely consequences of your options.

Another important area is the preparation of court documents. In the Family Law system all of your evidence has to be presented by way of Affidavit. What you include in your Affidavit must be relevant to the issues being decided by the court. This is an area where self-represented litigants really struggle, because they want to put down the whole of their story and how they feel. This often obscures the real issues and results in the Judge not getting a clear picture.

If you can’t afford a lawyer for the whole case, consider paying a lawyer at strategic points such as just before or just after separation, after each court hearing (so that the lawyer can advise you what to do next in light of the orders that have just been made) and when you are preparing your paperwork.

It’s not ideal because a lawyer can often negotiate on your behalf, give you an idea of what likely outcomes are to be and advise you as to your overall strategy.

What is essential is that you find the right lawyer for you because you have to discuss intimate matters about your relationship, your hopes, your fears and your finances and you are paying that lawyer for their services. Talk to them about what and how you can manage your fees. Can you pay a monthly retainer? Instalment payments? Are you waiting for a property to be sold or refinanced- to release funds for your fees? Or a mixture of methods? Can somebody else pay your legal fees or can you borrow and if so what is the cost benefit to you in doing so?

It is difficult to afford a lawyer, the real question is can you afford not to have one?