Getting Family Law Legal Advice
Interact Support strongly recommends getting specific legal advice before your mediation session for family law mediation.
If you haven’t had legal advice yet or you’ve only had general advice you can wait till after your pre-mediation session with your mediators as they can help you to identify gaps in your knowledge and prepare questions for the lawyer.
The Problems with A free legal advice session
A free 20 or 30 minute legal advice session is usually going to be very limited legal advice.
To give you specific legal advice the lawyer needs a lot of information about your family and your situation, especially when it relates to property settlements. Without that, they can only give you general legal advice which is not really accurate for your specific family.
In a property settlement, there are many considerations to take into account.
- What you actually have (everything you own, everything you owe and your superannuation)
- How long the relationship was.
- What you each brought into the relationship in financial terms.
- Your financial and non-financial contributions during the relationship, and even sometimes negative contributions if one of you has significantly negatively impacted the family’s financial situation.
- the future needs to consider such as, your relative ages, working and earning capacity, other resources and most importantly, if there are children. What the care arrangements are and how do they affect earning capacity and future needs?
It’s a lot!
Your family is unique, and to provide you with specific advice, the lawyer needs the correct information. If you did have a legal advice session and the lawyer told you a percentage for a property settlement without asking all those questions and getting good answers from you, do not rely on that information.
In fact the lawery should never tell you that you would get a specific percentage amount if your case went to court. That is impossible for them to know with that level of precision. A lawyer providing you with quality advice will always give you a percentage range of the best likely and worst likely outcomes.
For example, after a short chat without finding out about all those considerations above, they say you’d get 60/40 or something similar do not rely on that advice. It’s too generic.
Generally, the free 30-minute “legal advice” sessions are an opportunity for you and the lawyer to check each other out and decide if you think you can work together. The lawyer will also be asking questions to find out if you have enough money to afford their services.
They should give you a Costs Disclosure Document with some information about how they charge for their services however, unless you ask specific questions, you may significantly underestimate the cost of lawyer negotiation or going to family court.
By the end of the free session, you should know what the lawyer’s hourly rate or rates are (sometimes they have a junior lawyer or paralegal do some of the work at a lower rate, or sometimes they may call in a senior lawyer at a higher rate) and have an estimate of what they think it may cost for their services.
The estimate is likely to be wildly inaccurate as it is hard to know in advance the total cost as it depends on how much conflict there is. Ask them what other similar clients ended up paying and see what they say to that.
Community Legal Services and similar
Community legal services are excellent free services, often staffed by volunteer lawyers.
Sometimes the lawyers are volunteering because they have a strong commitment to social justice. Sometimes it is because they are new to the profession and are gaining experience.
If you go to a free service for legal advice, always ask the lawyer what ‘family law experience’ they have before relying on the advice they provide. For some, they may be relying on theoretical knowledge from law school rather than actual experience from client cases and work they have done in the family law court.
A community legal centre should be able to help you to understand the meaning of letters you get from the other side and give you general advice. They may not be able to give you tailored legal advice for your specific situation or know how much it will cost for each stage of the court process. Usually, their services are restricted to providing advice and minimal legal services.
Find a Community Legal Centre in your location
ACT – https://www.actlawsociety.asn.au/for-the-public/legal-help/community-legal-centres
Northern Territory – https://lawsocietynt.asn.au/nt-legal-directory/other-legal-links-1.html
NSW – https://www.clcnsw.org.au/help
Queensland – https://www.communitylegalqld.org.au/find-legal-help/
South Australia – https://www.clcsa.org.au/community-legal-centres
Tasmania – http://www.clctas.org.au/
Western Australia – https://www.communitylegalwa.org.au/Pages/FAQs/Category/clc-location?Take=26
Victoria – https://www.fclc.org.au/find_a_community_legal_centre
Legal Aid
Legal aid is another way to get lower cost legal services.
The services are usually means tested but in some situations such as when there has been family violence, you may be able to access legal aid even if you don’t meet the means test (have too much money).
National legal aid website – https://www.nationallegalaid.org/
Legal Aid is organised on a state government level so you will need to contact the legal aid services in your state to see if you are eligible.
If you are not eligible for legal aid you may need to pay for legal advice.
ACT – http://www.legalaidact.org.au/
Northern Territory – https://www.legalaid.nt.gov.au/
NSW – https://www.legalaid.nsw.gov.au/
QLD – https://www.legalaid.qld.gov.au/Home
South Australia – http://www.lsc.sa.gov.au/
Tasmania – https://www.legalaid.tas.gov.au/
Western Australia – https://www.legalaid.wa.gov.au/
Victoria – https://www.legalaid.vic.gov.au/
Paying Fee for Service
The decisions you have to make when separating from your co-parent and/or reaching a financial separation after a marriage or de facto relationship are big ones. Perhaps the most important decisions of your life.
Getting good quality legal advice is a very smart investment of your time and money but only if you ask the right questions and use the time well.
Different lawyers have different attitudes and approaches and it is essential to make sure that your lawyers approach is aligned with your situation and goals.
Some examples
- Some lawyers are very adversarial in their personality and approach. They don’t put any importance on the need to maintain a good working relationship with your former partner for the sake of sharing care of children. These lawyers may be helpful if you are being subjected to financial other abuse and a collaborative approach is not possible.
- Some lawyers take a more balanced approach and will ask you what is important to you not just try to impose what they think should happen. They will work with you to help you to navigate the family law system and negotiate a good, practical resolution of the issues. These lawyers generally have a good understanding of mediation and family dispute resolution and are supportive of it.
Be careful of lawyers who are dismissive of mediation and family dispute resolution as an option for you, as there is the risk that their self-interest is affecting their advice. If a mediator does a significant part of the work to help you to reach a property settlement agreement, the lawyer will get much less income than if they were managing the negotiation or you go to court.
For example, it is not necessary for all “discovery” to be done before starting Family Dispute Resolution for your property settlement negotiations. If your lawyer is insisting that it is, then it is likely that they either do not understand Family Dispute Resolution or they want to keep the work (at a much more expensive rate) for themselves.
In family dispute resolution, we speak directly with both participants meaning that our process is much more efficient rather than the lawyer’s approach, where they can only speak directly with each other and their own client. That can result in misunderstandings or lack of clarity in communication, causing increased costs and delays.
Get in touch with us if you would like to find out more about Family Law Mediation (Family Dispute Resolution) Contact Us
We also provide other forms of mediation through our Interact Community Dispute Resolution Service (ICDRS) Find out more on the ICDRS website https://icdrs.interact.support