Waterson Legal
Commercial and Family Law
FAMILY LAWYERS
Do family lawyers have special qualifications?
No, family lawyers are lawyers who work in family law. There are firms or individuals who deal solely with family law and those who specialise in family law and other areas of law. Neither is necessarily better, as knowledge and experience in other areas of law can often contribute to family law.
How to choose family lawyers?
Like with everything, the best way is to find a family lawyer through recommendations from people you trust and read reviews. You may have a few options, so do not be afraid to meet or discuss your matter with different family lawyers before you decide.
It is important that you feel you can trust your family lawyer, that you feel you can work with them well and of course that their legal fees are reasonable. At Waterson Legal we hope we answer all those criteria.
If you engaged a family lawyer and later feel you made the wrong decision, you can always change family lawyers, just try to make the decision as early as possible before much work is done.
How much do family lawyers cost?
As family law proceeding in Court are very expensive, it is important to know what your family lawyers’ fees are. These legal fees vary from one family lawyer to another. In matters of litigation (which end up in Court), family lawyers’ fees are charged by hourly rate in 6 minutes increments. Hourly rates can vary considerably, up to $600 + GST an hour (and sometimes even more). It also depends whether there is more than one family lawyer from a firm working on your matter, which could mean higher charges.
In matters which are resolved by financial agreement without the need to go to Court, the legal fees are significantly lower.
Can family lawyers represent both parties?
No, family lawyers cannot act for both parties. Clearly, if the dispute reaches Court, each party wants their family lawyer to pursue their own best interests, but also outside Court, where parties have an agreement about their property settlement and want to make it formal by way of financial agreement, they still cannot have the same family lawyer act for both of them.
The idea behind the requirement for separate representation is that each party’s circumstances are different and they need to be aware of their rights and obligations independently of any pressure or influence from the other party.
For that reason, one of the conditions for a financial agreement to be binding, is for each party to received independent legal advice from a lawyer.
Can family lawyers subpoena documents from the other party?
A major principle in family law property settlements is proper financial disclosure. The parties have an obligation to provide full and frank disclosure of their financial circumstances.
A subpoena is an order of the Court made on the application of a party to a proceeding. Therefore, family lawyers can apply for subpoenas but only once the matter is in Court. A subpoena can be directed to any legal entity and could be for provision of documents or evidence or both.
Regardless of any subpoenas, parties have the obligation to provide discovery of all relevant financial information, so many times a subpoena is not required, and correspondence between the lawyers is enough.
In Court cases where certain documents are not provided by a party or are not in their possession, subpoenas can be issued, but only with respect to documents which are relevant to the proceeding. Your family lawyer can subpoena bank statement or other financial information, but a subpoena should not be used to provide documents which are pursued for ulterior motives such as revealing the other party’s personal life. Therefore, your family lawyer cannot subpoena text messages or subpoena phone records, just because one party wants to know about the other party’s personal life – the Court would not allow it.
The Court may allow to subpoena certain phone records or text messages if they are relevant to issues in dispute in the proceeding which may assist the Court in its determination.
Can you do property settlement yourself?
As explained above, and in detail in our editorial 'How Does Property Settlement Work', there are only two ways for a property settlement to be enforceable, either through orders of the Court or by way of a binding financial agreement.
Therefore, any property settlement between parties not by one of the two ways above, even if written and signed between them, is not recognised by law as being enforceable and will not prevent either party from going to Court and seeking different orders.
If you want to get an idea of what you are likely to be entitled to out of the matrimonial asset pool, there is one online Property Settlement Calculator which we recommend for that purpose, which can be helpful in saving you some time and money in preparing all the necessary information. However, as explained above, you will have to engage a lawyer to draft an enforceable financial agreement, or if there is no agreement, then to make an application to Court.