How to choose the right family lawyer for you: the family lawyer’s perspective (Part 1)

I understand from acting for clients over the years that even the idea of engaging a family lawyer after a separation can seem daunting, perhaps even confronting. This is understandable. In a perfect world, no one would choose to spend their limited resources to discuss intimate and often difficult areas of their personal life with a lawyer, let alone go through the family law process itself. In fact, relationship breakdown and divorce already feature in the top three of stressful life events, alongside the death of a loved one and major illness, especially when the stakes are high and the separation becomes high-conflict.

It’s therefore important to choose the right lawyer carefully, but how do you decide whether a particular lawyer is right for your circumstances?

The right skills and experience

My first tip is to ensure that your lawyer has the required technical expertise and experience.

Much of family law is discretionary, meaning that the outcome is usually not determined from strict, defined rules laid out in black-and-white, but instead involves subjective assessments and weighing up competing factors and the overall circumstances. This can lull some people (including, I’m afraid, some lawyers) into thinking that they can “wing it” when it comes to navigating the system and achieving a fair outcome as compared to, say, a complex business law or tax law dispute.

However, the opposite is often true. The nature of family law means that a good lawyer needs to be across different domains including businesses and commerce, the economy, child welfare and development, education and schooling, mental health, domestic violence, and dispute resolution, just to name a few. Many areas of family law also require a precise, forensic approach and not merely the broad-brush method that it is often associated with.

For example, the question of how monies received from a family member should be characterised (i.e. as a loan to be repaid or as a gift to be divided between the couple); assessing the interest that a person owns in a family business or trust; ensuring that superannuation interests are properly valued and divided; and navigating the increasingly complex Federal Circuit and Family Court rules and processes are not, in my view, areas that should be handled by a lawyer who doesn’t already have a deep familiarity with the relevant laws and family law system.

Sound knowledge

My second tip: engage a lawyer who has good experience in reviewing or drafting Consent Orders to finalise a financial settlement. The purpose of Consent Orders is to ensure that an in-principle agreement becomes legally binding; to ensure a clean break of the party’s assets; to ensure the certain tax benefits are met; and (where applicable) to ensure that the division of superannuation interests are dealt with appropriately.

Given the various legal jargon required, drafting errors are relatively common. However, once Orders are finalised, it is very difficult to go back and correct the error.

The same applies to Binding Financial Agreements (BFAs), more commonly referred to as “pre-nups”. While a BFA might seem relatively straightforward in principle, the detail can be complex and for the agreement to hold up it needs to meet detailed legislative requirements and achieve both a certain level of certainty and flexibility.

The precise legal cost of drafting work will vary depending on the complexity of the case and how much assistance you need; however my advice is that investing in specialised advice rather than attempting to cut corners often pays for itself in the long-term.

In part 2 of this article (in a fortnight), I will talk about the need to appoint a family lawyer who, as well as having sound legal knowledge, recognises the human experience of going through a separation and has good people skills to help clients feel heard, calmer and ultimately more satisfied about the process.

To contact Daniel Myers, Special Counsel and Mediator at Schetzer Papaleo Family Lawyers, call (03) 8602 2000 or email daniel@spfamilylawyers.com.au

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