The unique features of Family Law litigation have previously been discussed, as have the similarities to criminal law and civil law litigation, in terms of the role of the barrister.  Clients in Family Law litigation often talk of settling or compromising the matter at a much earlier stage than is the case in much of the criminal law and civil law litigation. That has an impact on how legal representatives are required to prepare that litigation.

We have already established from our previous discussions about criminal law, civil law and family law litigation that:
•    The client is entitled to be advised as to all the forms of mediation and alternative dispute resolution available in respect of the case.
•    Only when:
    •    Full instructions have been taken from the client in the subject case; and
    •    A conference is held with the barrister and solicitor and client discussing all aspects of the case;
    is the client in a position to make an informed decision as to:
    •    The merits of the case sought to be run; and
    •    What the client might wish to do in respect of that case.
•    The client is then optimally enabled to discuss:
    •    The extent to which mediation and alternative dispute resolution is appropriate in the case; and
    •    What the client may stand to gain or lose by compromising the matter.

In the circumstances any attempt to compromise family law litigation prior to that complete preparation being undertaken, including a comprehensive advice from and conference with the barrister, must:
•    Necessarily deny the client the opportunity to be fully informed about their matter; and
•    Colour any compromise accordingly.

It is even conceivable that in some circumstances the compromise might be able to be subsequently set aside by a Court as being one that was made without proper appreciation of the rights available to the client at the time.

Conclusion
Given the impact such a decision can have on your relationship with your children and/or your personal property, would you want to compromise your family law rights without being fully informed?

Ross Bowler LLB

Having discussed criminal law and civil law, I now propose to talk about family law and the demands it might make upon a barrister.

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

Over the next couple of blogs I propose to deal with the role barristers can play in the legal system.

Criminal Law
The role of the barrister in criminal law matters is reasonably well known and understood.

Advice On Giving and / or Calling Evidence
Once full and proper written instructions have been taken from the Accused by the solicitor, the Accused is entitled to be properly advised in respect of giving and / or calling evidence at the trial.  That advice invariably comes from a barrister and the Court of Appeal has said that advice should include a discussion of the importance of:
•    The relative strength of the Crown case;
•    The impact upon that case from the course of the cross-examination;
•    Making a sworn denial before the jury;
•    Whether there was some unanswerable problem that the Accused would have confronted in giving evidence;
•    Earlier versions given by the Accused which might be difficult to reconcile with the current evidence of the Accused;
•    How the Accused would conduct himself as a witness;
•    The likely impression of the Accused upon the jury, if he gave evidence;
•    Any possible relevance of his not giving evidence at trial to determination of an appeal against conviction;
•    A potential advantage in the case of being last to address the jury.
It is also very proper to record the advice given in a complete fashion. (See R -v- ND [2004] 2 QdR 307; [2003] QCA 505)

Having had those discussions with the accused, the barrister is then in a position to advise the accused the prospects of success at trial and what might occur if the matter was compromised by way of a plea of guilty.

The accused is then in a position to make a fully informed decision as to how the matter ought proceed, either at trial or by way of plea of guilty and sentence.

Civil Litigation
Whilst civil law trials are different to criminal law trials in many respects, there are also many similarities.  The focus of criminal law trials is on the accused and all of the disclosure is expected to have occurred well before the matter comes to trial. Civil trials see the focus more evenly spread across the witnesses and a failure to disclose evidence may not be a reason to delay or adjourn the trial.

Bearing in mind the standard of proof in a civil trial is on the balance of probabilities, as opposed to beyond reasonable doubt in a criminal trial, let us look at how the aforementioned list of obligations and entitlements in a criminal law trial might apply in a civil trial.

The civil law Client would be entitled to be advised as to:
•    The strengths and weaknesses of his own case;
•    The relative strength of the case of any and all opponents, to the extent that that information is available;
•    The impact upon both cases from the course of the cross-examination;
•    Each witness making a sworn statement before the Judge or jury, as the case may be;
•    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 himself as a witness;
•    How any other witness might conduct himself as a witness;
•    The likely impression of the Client upon the Judge or Jury, if he gave evidence;
•    Any possible relevance of the Client not giving evidence at trial to determination of an appeal against liability or damages, as the case may be;
•    A potential advantage in the case of being last to address the Judge or Jury; nowhere near as significant in a civil trial.
•    All the forms of mediation and alternative dispute resolution available in respect of the case.

Conclusion
In my submission the obligation to advise a Client in respect of a civil trial is very similar to the obligation the Court has identified in respect of criminal trials. Accordingly comparable preparation for that civil trial can be expected to be required of the legal representatives.

This would then enable the Client to make an informed decision as to the merits of the case sought to be run and what the Client might wish to do in respect of that case.

It would also enable optimum discussion about the extent to which mediation is appropriate in the case and what the Client may stand to gain or lose by compromising the matter.

What obligations do you see that fall to a barrister when it comes to advising a client before a trial?

Ross Bowler LLB

Family law property settlements are the cause of great consternation for many people. Sadly adding to that consternation is the fact that the preparation of many family law property settlement cases is done badly, if not just plain wrong.  In an attempt to obviate some of that consternation I have prepared a short list of questions, which if answered correctly and completely, can put family law property settlement enquirers and litigants on a path to a proper understanding of their position.

The Information Required
What was your financial position at the start of the relationship?
What is your financial position now?
What did you bring to the start of the relationship?
What financial contributions were made to the relationship:
- Direct?
- Indirect?

Provide answers to those questions in respect of your former partner also.

What income did the household have during the relationship?
What expenditure did the household have during the relationship?
It is irrelevant for these purposes as to who paid which particular bill.

Was there any wastage of assets during the relationship?
Was there any wastage of assets after the relationship ended?

What is the earning capacity of each of the parties?
What are your future needs in terms of:
- Living;
- Education;
- Employment;
- Special Needs?

Similarly, what are the future needs of:
- Your Former Partner?;
- Any Children?

Prepare a chronology of all events relevant to the property settlement. That chronology will come in very handy later in proceedings. Update that chronology as new information comes to light.

Prepare a comprehensive statement from the litigant outlining the relevant events in chronological order.  That statement can be used as a guide for the evidence of the litigant, should the dynamics of the case require evidence to be given, in whatever fashion.  Accordingly the statement will form the basis of any affidavit material that might need to be filed in court.

Collate all documentation that supports this property settlement information eg bank statements, property valuations.

Case Assessment
Once provided with all this information and documentation I will then be in a position to assess the strengths and weakness of the case. From there I can advise on the outcome that might be reached if a Court were asked to decide the matter.

It is only at that stage, when a litigant has been properly advised as to the outcome that might be reached if a Court were asked to decide the matter, that the litigant is in a position to make an informed decision to compromise the matter at mediation or make an offer to settle. Anything less will involve making a less than fully informed decision about the outcome of the matter.

Conclusion
The family law property settlement process is one of many steps, but if approached methodically and the skills of experienced legal practitioners are properly utilised, that process need not be daunting. It can be informative, rewarding and empowering.

So embrace the opportunity to purposefully confront your family law property settlement and remember that help is available through the phenomenon called asking.

I have prepared a slide show presentation containing all of this information, which may also be of some assistance to you.
(Family Law: Property Settlements - Preparation Guide)

In a subsequent post I will deal with Family Law Relocation cases.

Ross Bowler LLB
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