Preparation for Legal Advice
Getting good quality legal advice is strongly encouraged for all people involved in separation and divorce. Understanding your legal rights and obligations makes it much easier to reach a property settlement or parenting agreement without going to court.
Why does good quality Legal Advice help with reaching agreements out of court?
Good quality legal advice will make sure that you understand your negotiating range. Your negotiating range is usually worked out as being somewhere between the extremes which are known as:
- the Worst Alternative to a Negotiated Agreement (WATNA) and
- the Best Alternative to a Negotiated Agreement (BATNA).
It is also helpful to find out what is the Most Likely Alternative to a Negotiated Agreement (MLATNA)
As you can see above, the other thing you need to know is what those alternatives are likely to cost you.
When you are thinking about family law costs there are three things to think about:
- Financial cost. Talk to your lawyer about their fees. Find a Lawyer. Many, many people end up paying vastly more money than they thought possible at the start of their family law matter. Your lawyer can tell you a lot more about likely costs at the start than they will unless you ask. Don’t just accept their Costs Disclosure and trust that it will all be OK. Ask what similar clients to you have paid from the start of the process of going to court until it was settled fully. If they can’t or won’t tell you go to another lawyer. They may not be an experienced family lawyer or they are dishonest and hoping to get you caught up in legal action that you can’t get out of before you realize the full cost.
- Time cost. It will take years to get a final order from the Family Court. Many people end up with a negotiated agreement somewhere along the way when they run out of money or patience so it makes more sense to negotiate an agreement rather than going to court. Participating in Family Dispute Resolution means that you remain in control, can take the time that you need and will most likely reach an agreement that is as good or better than you would have reached if you went to court.
- Stress cost. Going to court will be stressful. There is no doubt about that as you are handing over very important decisions that will have long-term effects on your life to someone else. If you have a very, very difficult co-parent that may be your only option but if that is not your situation then consider your alternatives. We recommend an alternative pathway such as doing the New Ways for Families Course and then participating in Family Dispute Resolution. When you are thinking about stress don’t just think about your own stress, think about your whole family. How will the stress of going to court affect your co-parenting relationship? How will it affect your child? If you have to go to court there are things you can do to help manage the stress on yourself and to protect your child as much as you can but you are not likely to totally eliminate the harm that the conflict associated with being in the Family Court will cause.
Interact Support strongly recommends that you get tailored legal advice before you participate in a joint mediation session when you are attempting to negotiate a property settlement or your first parenting agreement after separation.
Why a free legal advice session isn’t tailored legal advice
A free 30-minute legal advice session where you go and see the lawyer without preparation is not a tailored legal advice session.
If you do not provide them with full information about your family and your situation they can only give you general legal advice which is not tailored to your specific family. Your family is unique and to provide you with the best advice the lawyer needs the right information.
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 will give you a Costs Disclosure about how they charge for their services but unless you ask specific questions they may not give you a real understanding of what going to court over a parenting issue or property settlement may cost you.
Community Legal Services
Community legal services are great services, often staffed by volunteers, however often the lawyers are volunteering 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 it may only be general classes they did at law school and they do not have experience in the family law court.
They should be able to help you to understand letters you get from the other side and give you general advice but they won’t generally 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.
Paying for Legal Advice
If you don’t have any assets, and in some situations when there has been family violence, you may be able to access legal aid. Legal Aid is a state government organised service so look up the legal aid services in your state to see if you are eligible.
If you are not eligible for legal aid (or don’t have total confidence in your legal aid lawyer) you may need to pay for legal advice.
Going to court may be a waste of money but if you are separating and have children and/or any assets it is a worthwhile investment of your time and money.
Interact Support has arranged a small number of lawyers who will offer a Fixed Fee, 90 Minute legal advice and strategy session for family law clients in some cities. They can usually also provide their advice by phone or video meeting but make sure you are working with someone in your state so they understand both Family Law and Family Violence legislation and courts in your area. https://interact.support/find-a-lawyer/
How to Prepare
When you are going to see the lawyer about parenting the information you need to provide them is about your children, your former partner and anything that will help the lawyer to understand things that could affect what is in your child’s best interests.
The Family Law Act 1975 makes it clear that it considers:
- both parents are responsible for the care and welfare of their children until the children reach 18, and
- it presumes that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
If you believe that it is not in your child’s best interest for you to have shared care of your child (or if your child’s other parent believes this) then you will need to explain to them why that is. Having legal advice about whether your feelings are likely to be supported by the court will help you to see if you are being reasonable or perhaps allowing your anger and disappointment about the end of your relationship affect the way you see your child’s relationship with their other parent.
Two tiers of consideration for Parenting Matters
In deciding what is in the best interest of a child, the Family Law Act 1975 requires a court to take into account two tiers of considerations – primary considerations and additional considerations:
- The benefit to children of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is required to give greater weight to the consideration of the need to protect children from harm.
- The child’s views and factors that might affect those views, such as the child’s maturity and level of understanding.
- The child’s relationship with each parent and other people, including grandparents and other relatives.
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
- The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
- The practical difficulty and expense of a child spending time with and communicating with a parent.
- Each parent’s ability (and that of any other person) to provide for the child’s needs.
- The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
- The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
- The attitude of each parent to the child and to the responsibilities of parenthood.
- Any family violence involving the child or a member of the child’s family.
- Any family violence order that applies to the child or a member of the child’s family, if:
- the order is a final order, or
- the making of the order was contested by a person.
- Whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child.
- Any other fact or circumstance that the Court thinks is relevant.
A court must consider the extent to which each parent has or has not previously met their parental responsibilities, in particular:
- taken the opportunity to:
- participate in decision-making about major long-term issues about the child
- spend time with the child.
- communicate with the child, and has:
- met their obligations to maintain the child, and
- facilitated (or not) the other parent’s involvement in these aspects of the child’s life.
If the child’s parents have separated, a court must consider events and circumstances since the separation.
Scroll down to get a free copy of our Preparing for Legal Advice Worksheets
Current Arrangements – Care of Children
Agreement in Place – ☐ None ☐ Parenting Agreement ☐ Parenting Plan
☐ Parenting Orders – date of orders
Current Arrangements – Financial Support for Children
☐ No financial support ☐ Private Arrangement ☐ Child Support through the agency
☐ Secure housing ☐ Drug / Alcohol ☐ Mental Health ☐ Physical Health ☐
Worksheet – Preparation for Legal Advice about Parenting
|Consideration||Yes or No and dot points to remind you to give the lawyer details|
|1. Will your child benefit from having a meaningful relationship with both parents?|
|2. Is you child being subjected to or exposed to abuse, neglect or family violence?|
|3. What are your child(ren)’s views about what arrangements they want.
Please don’t try to make your child choose or decide their own parenting arrangements. That is not fair and very bad for them.
|4. What is the child(ren)’s relationship like with their parents and other significant people such as their grandparents and other relatives?|
|5. How willing and able are you both in encouraging a close and continuing relationship with the other parent?|
|6. If you are considering moving what is the likely affect of that move on the child(ren)’s relationships with other family they have been living with.|
|7. Are there any practical difficulties related to the child spending time with either of you e.g. work commitments, distance etc|
|8. Do either of you have difficulties in providing for your child(ren)’s needs?|
|9. Are there any other factors about the maturity, gender, lifestyle or background of the child(ren) or either parent that is significant?|
|10. If your child is of Aboriginal or Torres Strait Islander decent will your proposed parenting arrangements prevent them from enjoying their right to know their culture and heritage?|
|11. Is there anything about the attitude that either of you have to parenting or the child that is relevant to how time is spent with either parent?|
|12. Is there any family violence involving the child(ren) or a member of their family? Is there a family violence order? Take it with you to see the lawyer.|
|13. Anything else that you think a judge might find relevant.|
Since you Separated
|Consideration||Yes or No and dot points to remind you to give the lawyer details|
|Have you both participated in making major long-term decisions about the child?|
|Have you both taken the opportunity to spend time with the child?|
|Have you both made the effort to communicate with the child?|
|Have you both met your obligations to provide for the child’s needs (financially)|
|Have you both made it easy for the other parent to spend time with, communicate with and support the child?|
What changes to the current parenting arrangements do you propose?
How to Prepare Property
When you are going to see the lawyer about a property settlement the information you need to provide them is about your financial asset pool (what you BOTH have and what you BOTH owe)
If you need to transfer property or superannuation and to make sure that you do not have any further financial obligations towards your former partner you may need a Property Order.
The Family Law Act 1975 makes it clear that it cannot make Property Orders unless it is satisfied that, in the circumstances, it is just and equitable to make the order.
The general principles for a court to settle financial disputes under the Family Law Act 1975 are based on:
- Working out your assets and liabilities; that is, what you’ve got (including superannuation) and what you owe; and what they are worth.
- Looking at the contributions made by both parties during the marriage or relationship including:
- direct financial contributions to the acquisition, conservation or improvement of any of the property, such as wage and salary earnings
- indirect financial contributions to the acquisition, conservation or improvement of any of the property, such as gifts and inheritance from families
- direct and indirect non-financial contributions to the acquisition, conservation or improvement of any of the property.
- contributions to the welfare of the family, including any contribution made in the capacity as parent and homemaker
- The future needs of the parties having regard to things such as age, health, care of children, income and financial resources of the parties
You can read the law which outlines these factors in Section 75 and Section 79 and Part VIIIAB of the Family Law Act 1975 (if you were married) or in Section 90SF and Section 90SM and PART VIIIAB of the Family Law Act 1975 (if you were in a de facto relationship).
In addition, the Court, as far as practicable, is to make orders which will finalise the financial relationship between the parties (Section 81 of the Family Law Act).
If you both think that it is your best interests to not finalise the financial relationship between you or for any other reason prefer not to get a Property Order from the court there is a second alternative. This is called a Binding Financial Agreement and is a contract between you both about financial matters. It is generally more expensive than getting Consent Orders (consent orders are orders of the court based on an agreement that you have reached without the need for court hearings)
Current Agreements – Financial / Property
☐ Separated / Divorced no agreement ☐ Financial Agreement ☐ Binding Financial Agreement
☐ Property Orders
|If there is a proposal on the table that you are getting legal advice about detail it here or bring a copy of the proposal.|
Considerations – Equality of Financial and Non-Financial Contributions
|How long were you married and/or in a de facto relationship? E.g. living together as a de facto couple for thee year then married for 5 years.|
|Did either of you have any assets or major debts at the start of the relationship? List what you can remember and date.|
|Did either of you make a larger financial contribution during the relationship through earnings?|
|Did either of you make a major negative contribution during the relationship e.g. gambling?|
|Did either of you make a larger contribution in non-financial ways such as home making or caring for children?|
|Did either of you receive any major lump sums of money or inheritances? List who, when and how much.|
|Is there any other information about money coming into your family during the relationship?|
|Are there any financial issues right now such as money to live if you were financial dependent of the other person or paying the mortgage?|
Consideration – Equality of Future Needs
|Is there a major difference in your ages?|
|Is there a major difference in how much each of you are able to earn? Why?|
|Is there a major difference in your family responsibilities e.g. caring for young children|
|Do either of you have any major health issues that affect your ability to support yourself or your cost of living?|
|Are there any other considerations about your financial future or the financial future of your former partner that you think may be relevant?|
|If you are considering selling assets are their likely to be capital gains issues e.g. property other than your family home, shares etc.|
|Have either of you married or have a de facto partner?|
Additional questions to ask the lawyer.
Find a lawyer – https://interact.support/find-a-lawyer/
After you explain your situation ask the lawyer the following questions.
If we go to court what is the Best, worst and most likely outcome you think is realistic for our situation.
Safety – this may relate to concerns about your safety if you are experiencing ongoing family violence such as stalking, abusive messages, threats or other frightening behaviour after your separation.
If you are doing these things, stop. They are not allowed and likely to make your family law situation much worse. Go and see your local doctor and ask for a referral to get counselling support. We understand that this is a hard time for you but lashing out at your former partner is the very worst thing you can do for yourself, them and your children.
Parenting – this might be number of nights the child spends with each parent or related to a specific issue that is concerning you.
Property – this might be percentages of the asset pool or in relation to a specific issue that is concerning you
Legal Advice – Advice received
|Under the Family Law Act 1975||Best likely outcome||Worst likely outcome||Most likely outcome|
e.g. Shared parental responsibility, passports, schools
|Their Lawyer ☐ No lawyer ☐ Not sure Offer made? ☐ attached|
Notes about their previous offers or what they have told you is their legal position
The cost of going to court
How does the lawyer charge for their services?
☐ Hourly – what is their hourly rate? Ask for a copy of their costs disclosure and ask them to explain it if you do not understand how they charge for their services.
☐ Set fees – what is included in their set price services. Ask for a copy of their cost disclosure and ask them to explain it if you do not understand it.
☐ Legal Aid – are you required to make a co-payment and if so how much.
|Type of service||Fee estimates|
|Lawyers Hourly Rate|
|Cost estimate for Consent Orders|
If you must go to court
|Estimated cost for preparation up to the 1st court date|
|Estimated cost per day in court (mentions) including Barristers|
|Estimated cost per day in court
(contests/hearings) including Barristers
|Do you know what lawyer phone calls, letters, emails, meetings etc cost?|
|If the lawyer works on an hourly basis how often will they provide an update on costs?|
|If the lawyer requires money into their trust account how much do they need?|
|Overall estimate of costs
Ask for an estimated range based on other similar clients
|Average time to resolution
Ask for an estimated range based on other similar clients
All states except for WA – http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/fees-and-costs/fees/family-law-fees
Family Court of Western Australia – http://www.familycourt.wa.gov.au/F/fees_and_forms.aspx
If you are already in court
Family Violence: ☐ Magistrates Court ☐ Children’s Court
Family Law: ☐ Federal Circuit Court ☐ Family Court of Australia ☐ Family Court of Western Australia
Type of orders being sought ☐ Parenting ☐ Financial ☐ Both
I am the ☐ Applicant ☐ Respondent
|Stage in the process||Court & Location|
|1st Court Date|
|Next Court Date|
|Court Ordered FDR|