Chapter 2: Getting help

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2.1 Counselling and emotional support
2.2 Lawyers
2.3 Legal aid
2.4 Preparing to get legal advice

2.1 Counselling and emotional support

Why do I need advice and support?

Separation or divorce can create upheaval in people’s lives. It can be difficult to make decisions about money or property in a time of emotional turmoil. Often a woman must not only deal with her own emotional needs but also help her children adjust to their changed circumstances after separation.

It is essential that you have good legal advice to help you make the best decisions about yourself and your children. It may also be important to have emotional support. It is sensible to keep the two areas separate. Do not rely on a lawyer for emotional support and do not take legal advice from a counsellor; you should only take legal advice from a lawyer.

Is there anyone I can talk to?

You may need help with the many decisions and feelings you face when your relationship is in trouble. Counsellors can help you get things clear in your mind and give you advice and information about your relationship. Most women’s health centres have counsellors that offer services either for free or for a reduced fee depending on your income.

Family Relationship Centres provide information and advice about parenting, relationship and separation issues. These centres also provide family dispute resolution services, which can help you and your partner reach agreement about parenting arrangements for your children without going to court.

A family relationships website and telephone service for parenting advice is also available. See Chapter 9: Referrals and Resources.

The Family Law Court has information on many topics including helping your children cope with the end of a relationship.

Usually going to counselling is your own choice, but the Family Law Court will usually require at least one visit to a family counsellor if you want a divorce and you have been married for less than two years.

Usually what is discussed in counselling is confidential, but there are some exceptions. Most counsellors must report a risk of child abuse to NSW Community Services. If you have concerns about confidentiality, get some legal advice.

2.2 Lawyers

Do I need to get legal advice?

No matter how well you and your partner get on, it is important to get independent legal advice. You can then make informed decisions and possibly work out an agreement between yourselves that is fair. Any agreements you make should be checked by your own lawyer.

If you and your partner cannot agree on important issues like the care of the children or dividing the property, it is important to get legal advice quickly before something is changed that may affect your rights or entitlements.

Legal Aid NSW, LawAccess NSW and community legal centres can give free legal advice.

Do I need a solicitor or a barrister?

In NSW, lawyers work as either solicitors or barristers.

Solicitors can:

  • give you legal advice about your legal rights and options;
  • help you reach an agreement with your partner or the other parent of your children; and
  • prepare documents to confirm that agreement and file them in court – ie apply to the court for consent orders.

Important information

You can apply for consent orders without a lawyer, but it is better to have a lawyer prepare the actual orders to make sure that they are clear and your rights are protected and that you have considered all your options. By formalising your agreement through consent orders, a court can enforce the agreement if it is breached. Consent orders are enforceable against both you and the other parent. For this reason, we always recommend you get legal advice about whether consent orders are in your best interests and the best interests of your children; sometimes it is better not to have orders which you will be obliged to follow. You can file a completed Application for Consent Orders form through Family Law Court or the Local Court. There is a filing fee for this form. For current filing fees and for the Family Law Court website refer to Chapter 9: Referrals and Resources.

Solicitors generally prepare any paperwork for a court case and many solicitors will also appear in court to present a case.

Barristers (sometimes referred to as counsel) specialise in court work and are usually contacted through and hired by your solicitor on your behalf to represent you in court. If your solicitor recommends a barrister, your solicitor must tell you how much the barrister charges and get your agreement in writing to pay her or his fees. You will have the advantages of having two lawyers on your side, but you may also have extra expenses. Sometimes you will get Legal Aid for barrister’s fees.

It may be cheaper to find a solicitor who will go to court for you without a barrister. However, if your case is complex, it may be better to have the experience of a good barrister on your side. It is possible for barristers to take a case on directly without having to go through a solicitor, however it may be difficult to find one prepared to do this.

How can I find a solicitor?

To find a solicitor, ask LawAccess NSW or a community legal centre or the Law Society Solicitor Referral Service for names of solicitors experienced in family law. The NSW Law Society has a specialist accreditation program for family law solicitors. You can ask for the names of solicitors with specialist accreditation. See Chapter 9: Referrals and Resources for more details.

Many solicitors have a free first appointment so that you can meet them and decide if you feel comfortable working with them.

You can also access free or low cost legal services by applying for a grant of Legal Aid. For further information about applying for Legal Aid, see 2.3 in this chapter.

What can I expect from a lawyer?

Your lawyer should clearly explain your legal position to you, tell you what your choices are and what she or he thinks is the best option for you to take. But you are the one who should make the decisions about your case, based on advice from your lawyer.

It is important to understand what your lawyer says so you can make informed decisions. If you have difficulty understanding your lawyer’s advice, ask your lawyer to explain in a different way that is easy for you to understand. If you still do not understand, ask them to put it in writing and you can then read it at a quieter moment or ask someone for help to understand.

Your lawyer should not agree to anything with your partner or the other party’s legal adviser unless you have agreed to it first.

Your lawyer should also keep you informed of the progress of your case and your ongoing costs. A private lawyer will charge you for all time spent doing work for you, including talking to you on the phone and writing letters to you.

Handy Tip

Many women can feel intimidated when talking to their lawyer so it can be useful to write down all the things you want to say and all the questions you want to ask before you go to an appointment with your lawyer.

What will my legal costs be?

Before you choose a lawyer, it is important to ask what their fees will be. All lawyers are required to tell their clients about their fees.

There are rules setting out how much a lawyer, whether a barrister or solicitor, can charge for work done under the Family Law Act 1975 (Family Law Act). There is a fixed hourly rate for work such as talking to you, either in person or on the phone and going to court. There is a fixed fee for preparing a divorce. There are also set charges for most other work like preparing documents, reading letters and other documents, and photocopying.

It is important to know though that many lawyers charge more than the fee set by the Family Law Act. This is permitted, but they must first:

  • make a written agreement with you setting out how much they charge for different kinds of work;
  • let you know you can get independent legal advice about legal fees; and
  • give you a Family Court brochure about legal costs, which sets out the scale of fees and your rights to challenge a legal bill.

As well as solicitor’s fees, you will pay for disbursements. Disbursements are costs the solicitor pays on your behalf such as fees for your barrister, court filing fees, photocopying, or the cost of serving documents on someone.

Barristers charge between $1,500 and $6,000 a day, depending on the experience of the barrister and the complexity of the case.

It is impossible to say what your legal fees may be, but here is an example. If you need a full court hearing about children or property lasting two days, it could cost you and the other party about $25,000 each (from the beginning of the matter to the end). There are more costs if interim hearings are needed or if the value of a family business is involved. A complex case with a hearing lasting two weeks could cost over $100,000 for each party.

Handy Tip

Every time you talk to your lawyer you pay for their time. You can save money by taking any important documents (e.g. marriage certificate, bank account statements, receipts, superannuation details and details of any property you own) to your lawyer on the first visit. You can also prepare notes for your lawyer about yourself, your family and your property. See the Information Sheet at the end of this chapter.

What if I don’t like what my lawyer is doing?

If you are unhappy with your lawyer you can go to a new one, but you will have to pay the first lawyer’s bill before she or he will send your papers on to you or your new lawyer.

If you have a lawyer paid for by Legal Aid, and you are unhappy with the lawyer you have been allocated, you can talk with Legal Aid about changing your lawyer.

You can make a complaint to the NSW Office of the Legal Services Commissioner about your solicitor or barrister. Complaints should be made within three years.

What if I think my lawyer has charged me too much money?

If you:

  • made a costs agreement with your lawyer about costs; or
  • started a court case in the Family Law Court;

you can challenge your lawyer’s bill.

In NSW you can start by asking for an itemised bill (if your lawyer has not already given this to you). This is a bill that sets out each item of work and the amount charged for the work. If you think that the bill is too high, contact your lawyer to discuss your concerns. Your lawyer may agree to review the bill.

If you cannot reach an agreement, you may want to consider costs mediation. If after mediation you are still unable to reach an agreement, you can apply to the Supreme Court of NSW for a costs assessment. This is when the court appoints an independent costs assessor to consider the bill and your concerns with it. You have 12 months from when your lawyer gives you the bill to apply for a costs assessment.

Contact the Office of the Legal Services Commissioner or the Law Society of New South Wales for further information about costs mediation and costs assessment. See Chapter 9: Referrals and Resources.

Can anyone else help us to agree about important decisions?

The federal government encourages people to settle their own disputes and it has a number of ways of helping people to do this including through counselling, family dispute resolution (mediation) and arbitration.

There are many benefits of using family dispute resolution:

  • it costs a lot less than going to court;
  • it may be more satisfying to be in control of the process and to come up with your own agreed resolution; and
  • when there are children, parents may have to continue to relate to each other as parents long after their intimate relationship is over. Taking a matter to court can make this more difficult.

For a discussion about whether family dispute resolution is suitable for you, see Chapter 4: Family Dispute Resolution.

What if I have trouble understanding or speaking English?

Interpreters can be arranged for counselling, mediation, arbitration and discussions with your lawyer and court hearings. You have a right to a free interpreter in court. If a legal aid lawyer is assisting you, ensure that the lawyer knows you need an interpreter – this will also be free.

2.3 Legal aid

Can I get legal aid?

Legal aid is available in family law matters. To get legal aid, you must satisfy:

  • a means test to assess your income and assets;
  • a merit test to assess your likelihood of getting the orders you want; and
  • an ‘availability of funds’ test to see if there is enough legal aid funds to assist you with your case.

Legal aid is not free and generally you will pay a small contribution to the cost of the legal work, depending on your income. The minimum contribution is $75. If you own a house or other significant assets, Legal Aid might also require you to have a charge agreement with them. This means that when or if the house is sold, Legal Aid will take the money you owe to it out of the settlement funds. Legal Aid NSW has a Contributions Policy which sets out how it calculates a person’s contributions and how it can enforce its repayment.

Legal Aid NSW may require that you participate in a mediation called a Early Resolution Assistance Conference to try to resolve the dispute before a grant of aid is given to go to court. Legal Aid NSW should make an exception to this requirement if it is not safe for you to do so, there are serious concerns for the safety of a child, or an urgent recovery order for the return of a child is needed. An Early Resolution Assistance Conference is very beneficial because you can have your lawyer with you.

How do I apply for legal aid?

You can apply for legal aid directly to Legal Aid NSW or get a private lawyer to apply for you. If your application is successful, Legal Aid NSW will either provide you with a solicitor or pay the private solicitor’s fees at Legal Aid NSW rates. Legal Aid NSW will ask you to pay a contribution towards your legal fees. Legal Aid NSW has a Contributions Policy which sets out how it calculates a person’s contributions and how it can enforce its repayment.

Legal Aid NSW may say that they cannot represent you because in the past they have represented the other party and have a conflict of interest. If this is the case and you are eligible for legal aid, the grant of legal aid can be made to a private solicitor who does legal aid work, and they will represent you.

Legal Aid NSW can prioritise urgent matters if they fit within their Policy and Guidelines. If you think you should be getting help urgently, contact Legal Aid NSW, LawAccess NSW or a community legal centre to ask for assistance.

If your application for legal aid is refused, you can appeal to the Legal Aid Review Committee within 28 days of being informed of the decision.

What if I’m not eligible for legal aid?

Legal Aid NSW and some community legal centres will give you free consultations with a lawyer to give you advice and possibly assist you with the paperwork to help you represent yourself in court.

NSW Legal Aid’s Domestic Violence Unit and the Early Intervention Service may assist with the preparation of urgent court documents. Sometimes their lawyers might represent you in court on a duty basis (meaning just for that day) where a matter is urgent even where you might not be eligible for legal aid for your whole case or where eligibility is yet to be decided.

Some private solicitors and barristers give you free legal advice and possibly assist you. This is called pro bono work. Contact the NSW Law Society or the NSW Bar Association for a pro bono referral if you cannot get a grant of legal aid. However, it is very difficult to get a pro bono referral for family law matters.

There are also many resources available for people who represent themselves:

2.4 Preparing to get legal advice

This information sheet can help you to make the most of the time you spend with your lawyer. Fill out this information sheet and take it to your first appointment with your lawyer together with the documents listed in the checklist.

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