What to Know in a Separation: Family Law Solicitors

In Family Law, solicitors have additional duties and obligations under the Family Law Act. Those duties provide directions as to how solicitors should act in family law matters. Here’s a helpful overview of how the setup works, as explained by expert Prue Hawkes, Senior Family Lawyer of Doolan Wagner Family Lawyers.

When solicitors are admitted to practice law in New South Wales, they commit themselves to a number of fundamental duties: first to the court, then to the client.

The role of a solicitor:

Beyond the abovementioned, solicitors have a duty:

  • To act in a way that is honest and courteous
  • Deliver legal services competently
  • Diligently and promptly
  • Avoid any compromise
  • Comply with the Solicitor Rules and the law (ideally you shouldn’t need to remind solicitors to comply with the law but sometimes it’s necessary to point that out!)

The Family Law Act

It is easy in family law matters to get bogged down in the ‘nitty gritty’ of family law disputes and forget that the Family Law Act was crafted to aid in the functioning of families following separation.

The Family Law Act bestows a number of obligations on solicitors when advising parties who are in the midst of a family dispute. The object is to ensure that parties to a family law dispute are informed about:

  1. Services available to assist parties with possible reconciliation, where that is appropriate,
  2. The services that are available to help parties adjust to their separation and orders that might be made under the Act, and,
  3. Ways to resolve disputes other than by applying for orders under the Family Law Act.

Where children are involved, a solicitor’s obligation goes further, parties must be informed and encouraged to regard the best interests of children of a relationship as paramount. Solicitors are to encourage the person to act on the basis that the child’s best interest will best be met by:

  1. The child having a meaningful relationship with both parents, and,
  2. The child being protected from physical or psychological harm from being exposed or subjected to abuse, neglect or family violence.

Sadly, these obligations can often be sidelined in the heat of a post-separation battle for time with the children and the better part of the property pool.

For example, Justice Benjamin, a Tasmanian based Family Court Judge, provided a scathing judgment on Sydney family law solicitors late last year after a couple spent upwards of $800,000 combined on legal costs to resolve a dispute over parenting and property. His Honour read a number of letters sent in the course of the proceedings and commented that:

“those letters were inflammatory and reflected the anger of the parties or one or other of them. The letters were at times accusatory. They were often verbose and at times involved unnecessary tit for tat commentary. Some of the letters served little or no forensic purposes”

In family law matters it can be difficult as a party to the proceedings to separate the emotion of a family law breakdown from the final resolution of property or parenting arrangements. But, and especially where children are involved, it is of the utmost importance to ensure their best interests are prioritised. That is the job of a Family Law Solicitor.

Our duty to clients is to ensure that proceedings are run in their best interest. As Justice Benjamin commented, “solicitors are not employed to act as postman to vent the anger and vitriol of their clients”. Sometimes advice that is in a client’s best interests may not be in line with how they would run their matter. Sometimes it can be particularly difficult if the other party has a solicitor who is willing to act as a ‘postman’ for their client. Notwithstanding the challenge, it is our duty as solicitors to ensure we act in a way that respects our obligation to the court, our client and the best interests of the child.

Lisa Wagner, Principal of Doolan Wagner Family Lawyers, is an Accredited Family Law Specialist, a Family Dispute Resolution Practitioner and a Collaborative Family Lawyer. Lisa and her colleague, Prue Hawkes have been successfully helping people with their separation and divorce for many years. You can find them in then NSM Directory and they are located in St Leonards. To find out more, head to their website.

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