Whilst family law has its own unique features, it is most definitely a constituent part of the litigation arm of the law and those aforementioned rules of litigation apply to family law, as we shall see.
No decision can be made by a Court exercising family law jurisdiction without it being based on the evidence lawfully before the Court. That evidence gets before the Court through witnesses, whether that occurs by way of affidavit or the witnesses giving evidence in the witness box.
On that basis the similarity with criminal law and civil law matters is significant and the extent to which family law matters might be subjected to a similar regime of obligations as those in criminal law and civil law matters is interesting.
In the circumstances I see no reason to distinguish between the obligations that will apply to advising a civil law client and a family law client when it comes to assessing the matter and being prepared for trial.
Accordingly in my view a family law client can expect to be advised by the barrister on these issues:
• The strengths and weaknesses of their own case;
• The relative strength of the case of any and all opponents, to the extent that that information is available;
• The possible impact upon both cases from the course of the cross-examination;
• Each witness making a sworn statement before the Judge;
• Whether there was some unanswerable problem that the witness might confront in giving evidence;
• Earlier versions given by the witness which might be difficult to reconcile with the current evidence of the witness;
• How the Client would conduct themself as a witness;
• How any other witness might conduct themself as a witness;
• The likely impression of the Client upon the Judge, when the Client gave evidence;
• All the forms of mediation and alternative dispute resolution available in respect of the case.
In order for the family law client to be given such advice that client would need to talk to a solicitor. The solicitor could then use their professional skill and judgment to obtain all the relevant material for the advice, omit all the irrelevant material and compile it into a coherent brief for the barrister. Upon reading and considering the contents of that brief the barrister is then in a position to confer with the solicitor and the client. Using their professional skill and judgment gained from going to Court and arguing such matters, the barrister is able to discuss the case with the solicitor and the client and advise them in respect of it. At the end of that conference the family law client would be fully informed as to the strengths and weakness of their case and what options might be available in respect of it.
That interplay of professional skills and responsibilities between the barrister and solicitor best serves the family law client in answering their enquiries and educating them as to their position.
Ross Bowler LLB