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Representing yourself in the Family Court

6/4/2016

 
More and more people are finding themselves having to consider acting for themselves in the Family Court. This could be because a "simple" application under the Care of Children Act must be filed by the litigant themselves, and not a lawyer. Or it could be because while a litigant is ineligible for legal aid, they cannot pay thousands of dollars for a lawyer.

Acting for yourself is always risky. Quite apart from the difficulties in understanding the law and Court process, you are unlikely to challenge your own position or "think outside the box" about other possible solutions.

A big part of a good lawyer's job is reality checking their clients' positions, to ensure that what they are asking for has at least a chance of being awarded by the Court. If you are acting for yourself with no advice, you will miss this vital step.

One option if you can't afford to engage a lawyer for the entire proceedings, is to seek advice at various steps and for specific jobs only. For example, you could meet with an expert family lawyer before filing an application, to get some advice about what to include (and what not to include). Then you might use the lawyer again only when the settlement conference occurs.

While traditionally lawyers work under a "full service retainer", carrying out every aspect relating to the proceedings, some are happy to work on a limited retainer, as described above. This is also known as "unbundled assistance" and more progressive lawyers are moving towards offering that service.

If you feel that you want to represent yourself, but you are wise enough to know that you don't know everything, I suggest finding a lawyer who can offer an unbundled service that fits your needs specifically.

Contribution to Lawyer for Child's costs

21/2/2016

 
In March 2014 the law changed to require parents to contribute to the costs of lawyer for child. Lawyer for child’s fees in even a fairly simple case can range from $1,000 to $3,000, and if your proceedings are complex or require a hearing to resolve, the lawyer for child’s costs could be even higher.

The starting point is that each parent will have to pay one third of the total fees. The Court will meet the other third. However, a parent could be ordered to pay up to two thirds of the fee.

To date it hasn’t been clear whether parents receiving legal aid would be liable for lawyer for child’s fees. The High Court has now confirmed that a legally aided parent will not have to pay anything towards lawyer for child’s costs, unless there are exceptional circumstances. The threshold to finding exceptional circumstances is very high, so it is safe to say that in the vast majority of cases, a legally aided person will not have to pay a contribution to lawyer for child’s costs.

The consequence of this ruling is of course very good news for legally aided parties.

There may however be significant consequences for parents who are not eligible for legal aid, where the other parent is. It is not hard to foresee situations where the legally aided party may take an unreasonable position, safe in the knowledge that they will not be liable for costs, but knowing that for every hour that lawyer for child spends on the case, their private-paying ex will have to pay more towards not only their own lawyer’s fees, but also lawyer for child’s. 

Time will tell whether in these cases the private-paying parent will be ordered to pay two thirds of the costs, because their ex is on legal aid. 

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