When you tell us about certain aspects of your relationship, we perform a risk assessment. We may suggest to you that register with the police so that should you need to call them they knew to come to your aid urgently.
Risk of Lethal Family Violence
When a client tells us that they are their partner have guns or other weapons in the home, we automatically refer them to the police.
Mental health issues and emotional distress
Mental health issues are common across society with 1 in 7 people experiencing depression and 1 in 4 experiencing anxiety in their lifetime. Family lawyers need therefore to be aware of and understand the implications of mental health issues for their client and their partner and be prepared to make some accommodation.
The nature of some mental health disorders means that frequently there will be behavioural and relationship issues which will create challenges for you as the client and for us as your lawyer.
Undiagnosed and untreated conditions may create unhelpful behaviours which inevitably lead to your matter becoming protracted and thus more costly than need be.
According to The Family Law Council and Family Law Section of the Law Council of Australia Best Practice Guidelines for Lawyers Doing Family Law work (for more information you can view this document here)
Part 1, Best Practice and Communication states at paragraph:
1.3 Family lawyers will encounter many clients who are exhibiting symptoms of high anxiety and distress. While much initial distress may abate with time and appropriate support, lawyers need to be mindful that such symptoms may indicate a more serious mental health issue.
1.4 Research indicates that relationship breakdown is a significant risk factor for mental health problems and suicide.
1.5 Lawyers should treat clients suffering emotional distress in a similar manner to clients suffering physical distress or illness, namely they should assist those clients to obtain support and professional help through referral to General Practitioners, counsellors, social workers and psychologists.
We discharge our duties to our clients suggesting to them that they may like to make an appointment to see their GP to obtain a referral to a counsellor/psychologist (which enables a Medicare rebate for counselling fees).
As family law clients are inclined to use their family lawyer as a counsellor, we strongly recommend to our clients that they seek help from the relevant professionals thus reducing time spent with us.
Why does the legal process take so much time?
The law is complex and we are heavily regulated. When we advise you, while our advice is abbreviated and in Plain English behind it sits a number of features about which you may not be aware. We must review:
- the relevant legislation and regulations that apply to your case
- the case law, and ascertain whether they are new cases that may apply to your situation, then establish whether there are fresh approaches that may be taken, or more helpful strategies
- The Family Court’s rules: we must make sure we give you all prescribed (must be given) documents such as the Marriage, Families and Separation document
- your overall situation and ascertain the likely outcome for you should the matter go to court and whether that would be to your advantage or not – emotionally and financially
Where appropriate, we may need to seek independent advice from a barrister about your prospects or retain a barrister to appear in court on your behalf. This is referred to as briefining counsel.
Family Court forms are lengthy and must be completed with 100% accuracy (which requires ‘homework’ on your part.) In addition, further documents may need drafting such as affidavits (sworn statements), consent orders etc..
What is a process server?
He or she is a service provider who collects court documents from we lawyers and ‘serves’ them (gives in person, ensuring they accepted) on your partner – or a third party if a subpoena is issued. The process server delivers the document, then swears or affirms an affidavit that is filed with the court attesting to the fact that the person or entity received the documents.
In a divorce application, it is really important to accept rather than avoid service of the Divorce Application as in the long run if you try to avoid service it will cause you inconvenience.
Legal words used in the family law process
For words commonly used in the family law process, we recommend you refer to this section of the Family Court website.
Ways you can help yourself
Please buy a 2 ring binder and divide into the following:
2. Court documents (if relevant)
3. Financial disclosure documents (eg bank statements, payslips, superannuation benefit statements etc)
4. Property and Business Valuations
5. Accountants reports
6. Psychologists reports (children) including Family Consultant’s report
Full and frank disclosure
Full and frank disclosure of all sources of earnings, interest, income, property and other financial resources is mandatory. It is critical therefore when advising a client to inform him or her that total disclosure must be made during the process of identifying and valuing the assets, liabilities and financial resources of the parties, whether owned jointly or separately. Hiding assets available for distribution or earnings or income is unlawful. Your client’s duty for disclosure continues until their case is finalised. Hence, should your financial circumstances change during the course of the matter, you have an obligation to update the other party and the Court of this and provide evidence of the details. When assessing liabilities, it is critical to take into consideration income tax or GST liabilities.
In cases where high net worth individuals are involved i.e. where tens of millions of dollars are at stake, there may be a temptation to hide or ‘dispose’ of assets. In such cases parties typically retain forensic accountants to identify hidden assets including hiding assets off-shore in foreign bank accounts, creating a complex web of companies, hiding behind a corporate veil, family trusts, giving away assets by putting assets in the name of other family members, new partners, businesses/companies, or creating dubious debts to family members, trusts or companies.
Consequences of Non-Disclosure
Where a party has failed to make full and frank disclosure, or there is evidence that a party has lied in relation to their income, property or financial resources, the Court will exercise its discretion under sections 75(2) and 79(4) and more likely than not make an adverse finding in relation to the non-disclosing party and an adjustment in favour of the adversely affected party. You may also risk having an order costs against made against you; a fine or risk imprisonment if found guilty of contempt of Court for non-disclosure. Any solicitor acting for such a client and knowingly assisting them in their failure to disclose risks breaching their solicitor’s duties to the court and the laws regulating solicitors.
Part 13 of the Family Law Rules 2004 (Cth) addresses disclosure between parties in its many forms.