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E27: Finding (and managing) a good family lawyer

On the Show Today You’ll Learn

This month Ben and Heather talk about family lawyers: how to choose one that’s right for you and how to make sure you get the best out of the lawyer you’ve chosen. Collectively they deal with a wide range of questions, including:
  1. What is an accredited family lawyer, and do I need one?
  2. Can I use the same lawyer or law firm as my ex-partner?
  3. Do I have to pay for an initial consultation?
  4. Should I shop around for a family lawyer?
  5. What should I be looking for in a family lawyer or law firm?
  6. How should I prepare for an initial meeting with a family lawyer?
  7. How can I be confident my family lawyer is on track?
  8. What should I expect from a family lawyer and when should I think about moving on?

Links & Resources Mentioned in This Episode

Family Law SectionFamily Law Section of the Law Council of Australia is the largest professional association of family law practitioners.

Independent Childrens Lawyer LogoIndependent Children’s Lawyers is the title given to lawyers appointed to represent children under the Family Law Act of Australia 1975.

Doyles Leading Family Law logoDoyle’s Guide is an annual peer review survey when lawyers are asked to nominate the leaders in their field.  You can search Doyle’s Guide for well regarded lawyers in your region and specific area of legal expertise.

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Full Episode Transcript

Welcome! Finding (and managing) a good family lawyer

Benjamin Bryant: Welcome to episode 27 of The Family Members Show. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers, and I’m here again with the doyenne of family law, Heather McKinnon. We’re actually recording this podcast only one week after we recorded our previous podcast in order to allow our producer some time off. So I have a sense of deja vu, don’t you Heather?

Heather McKinnon: Yes. I was thinking to myself, it feels like it was only a week ago that we did this and oh, my goodness it is.

Benjamin Bryant: Yes, it was Heather. And even the topic is kind of related. Last week we recorded episode 26, which was all about Do-It-Yourself Divorce. Heather and I walked listeners through how to do it yourself when it comes to finalising divorce papers. And we also talked about when it’s possible to manage making parenting arrangements and property settlements with little or no legal assistance. So one way to save money on divorce is to do it yourself. Ironically, another way to save money and stress is to have the right family lawyer and manage the relationship well. It’s simply not true that all lawyers are out there to milk their clients. So on today’s show, we’re going to put cynicism aside and talk about how we can get the best out of your lawyer. If you work well with a good family lawyer, the whole separation process is going to cost a lot less, both emotionally and financially. Isn’t that right?

Heather McKinnon: It sure is Ben.

Benjamin Bryant: Before we get started, I just want to remind everybody to share this podcast with family and friends who might need it. It’s a great resource for anyone starting down the path of separation. And if you have questions you’d like answered on the show, send them to familymatters@bryantmckinnon.com.au or message us on Facebook. Now on with the show. Heather, I’m going to put myself in the shoes of someone who just started looking for a lawyer to help with their separation. I’m going to ask you questions on that basis. Is that OK with you?

Heather McKinnon: OK Ben.  Fire away.

What does “accredited family lawyer” mean?

Benjamin Bryant: Heather, the first question is: some of our listeners may have heard of the term accredited family law specialist. What does that mean? And is it important to get an accredited family lawyer?

Heather McKinnon: Probably now, nearly 30 years ago, we developed a specialist accreditation system for family lawyers, which involves a lot of postgraduate study. So similar to other professions, the people who, in New South Wales for example, have law degrees, do about five years of postsecondary education. But it is true that over the generations, law has become more and more complex So if I go back to when I entered the profession 40 years ago, we didn’t have specialists in any field. You just became a lawyer, sat in your office. Someone would come in with a drink driving plea at 10 o’clock. The next client would be a conveyancing client. Then you’d need to have a family law client. So you had to be a jack of all trades. As we became more sophisticated in understanding the various areas of law, it seemed sensible that we followed medicine and started to give credit to people who concentrated their energies on particular fields. So accreditation has been around a long time. I was one of the first intake and I think we did our exams in 1993. So that’s how long we’ve had these people called specialists.

Heather McKinnon: What do they have to do? Well, they have to do a written exam that tests their theoretical knowledge of how the Family Law Act works. They also have to, under time pressure, prepare a set of court documents in a case and do letters of advice for clients. And they are all marked by people who are skilled in the field. And most importantly, they do an hour interview that’s videoed, with actors out of places like NIDA, where we replicate client interaction and an initial interview. The reason that that’s important in family law is that family lawyers have to have a very wide range of skills which cross over, if you like, into social science. They’ve got to be able to identify if someone’s a trauma victim.  If someone might have the need for mental health intervention. They have to engage and give people confidence. So the skills are a little bit different than you would require as a commercial lawyer, where you might be looking at your skills in understanding tax legislation. So in short, it seems to me that if you’re investing funds in family law, it probably is sensible to go to somebody that has those postgraduate qualifications.

Benjamin Bryant: Heather, I just loved hearing what it was like when you started law. And, you know, a great example of how much the profession has changed. Contrast to my entering the profession, I think 12 years ago now. And I started off with a sole practitioner in Coffs Harbour who only did family law. Next minute, I only knew family law. Next minute I was working with another firm doing family law. Then I was doing my Master’s and then doing my accredited specialist program. And I digress.

Is it ok use a lawyer I trust who is not an accredited family lawyer?

Benjamin Bryant: So Heather, you’ve said getting an accredited specialist is pretty important. What if someone has a lawyer that they’ve worked with in the past, in perhaps other matters and there’s a relationship and a rapport and there’s trust and confidence there, but they’re not an accredited family law specialist. What do you feel in that circumstance?

Heather McKinnon: I think some of my colleagues who are general practitioners are excellent as family lawyers in cases that are not complex. So lots of my colleagues in this area who are in my age group do consent orders. They’re pretty good at negotiating simple property settlements involving houses and super. Or mediation. Nearly all of them freak out when it’s a kids matter and in fact, they ring me and say, “Look I’ve got this really trusted client, can you look after them?” So my experience is that if you’ve got a long standing relationship with a lawyer, that’s your first port of call. Most of them will know themselves whether they’re in a matter that they’re out of their depth in and they tend to then ring people like you and me and say, can you help this client?  So, a lot of our referrals actually come from our colleagues: lawyers in other fields who realise that what we work in is a pretty specialised field. And if they are looking after their client, they will say, “Look, I’m here to help you, but I think you should go and see these people.”  So that’s how it works in the main. You very rarely get a case where you would end up in a hearing, in a children’s matter with a general practitioner on the other side.

Is it ok to use the same lawyer as my ex-partner?

Benjamin Bryant: Heather, is it OK to ever have the same lawyer as your ex or even the same firm?

Heather McKinnon: Absolutely, I mean, a lot of the work we do is just documenting consent orders at the end of the day. So a lot of couples work with us to negotiate the deal. And we may have to send one of them for independent advice at the end of the day to make sure that they know what they’ve done. But if people keep a high level of communication and they just need help in navigating things like how to do a superannuation split or how to transfer property, then yes, it’s often the case that we will meet with the husband and wife. Again, it only works in cases where they’ve maintained a high level of communication. And I must say of half of the couples that come to me, it’s very clear they haven’t got a deal done and they have to go somewhere else. So when you both go to see a family lawyer, usually one of you will be nominated as the client. So if the matter does descend into a bit of chaos, it’s clear that one of you has to go somewhere else.

Benjamin Bryant: And if you don’t have shared interest, if you can’t communicate, if there is the matter in dispute, then I think it’s common knowledge that you can’t have the same lawyer.  You have to have your own lawyer.

If my ex is using Legal Aid, can I still access Legal Aid?

Benjamin Bryant:  I wanted to use this episode today also helped to clear up something, a myth that we talk about when people call us about Legal Aid. They say if my ex has Legal Aid, then I can’t get Legal Aid. And we think the confusion comes from Legal Aid as a whole, Legal Aid New South Wales versus, say, the Legal Aid Coffs Harbour office. So if your ex is at the Legal Aid Coffs Harbour office, then you can’t get a lawyer from the Legal Aid Coffs Harbour office. But you can engage a private lawyer out in the community in Coffs Harbour that takes work on a legal aid basis. OK, I just wanted to clear that up. It’s very confusing You know, I’m not eligible for Legal Aid because my ex has it. That would be very bad policy.

Heather McKinnon: Nearly every legal aid case, both parties are eligible because they’re in that age group where they haven’t got assets or they’re raising small children. So it is really important to understand that Legal Aid is like Medicare. If you’re eligible for it, there’s a lawyer that will be able to act for you in your community.

How do I choose the right family lawyer for me?

Benjamin Bryant: And so Heather, I’ve just separated from my ex, things are not good at home, we’re not communicating and I need to find an independent family lawyer. And I jump on Google and I see a whole list of family lawyers in Coffs Harbour. How do I know which lawyer to call?

Heather McKinnon: Nearly every client that we see has got a number of methods of locating a lawyer. By far the most effective is direct client referral. So a client that has used the services says, “This lawyer is somebody that I felt did a good job.” So people ask around family and friends to get names of people that their colleagues and loved ones have trusted in the past. They also research online. So one of the first things you look at is the accreditation that we’ve talked about. Have a look at their age, their experience. You can look at reviews, but it’s like every other product, they’re only as good as the people who input. But by and large, most people I see have been directly referred to me by family or friends or professional referrals. So general practitioners, accountants that we may have worked with in the past, who know that their clients align with the skillset that you and I might be able to offer. So our work does come from a lot of places. But my experience is people ask around and they form a decision based on lots of research.

Benjamin Bryant: And so word of mouth is more powerful than a glossy website. But having said that, Heather, What I would recommend to listeners, if they don’t perhaps have any direct referral or word of mouth, to check out the point of differences, especially things like the resources that they offer. Some firms put a lot of time into educating the community, other firms, as you said before, are accredited specialists. So I would definitely look for a point of difference

Heather McKinnon:  I think the other thing we should tell people about is professional associations. So if you are doing your web research, we’re all members of an organisation called the Family Law Section of the Law Council of Australia, and you’ll also see people who have been appointed as Independent Children’s Lawyers. Those two things are a sign that the family lawyers that you’re looking at are well and truly embedded in the specialist profession and they’ve objectively been assessed as people that know what they’re doing. The other one that is important is a thing called The Doyle’s Guide. So The Doyle’s Guide to Solicitors and Barristers is an annual survey that is conducted across the profession around Australia. And it’s a peer review. So lawyers are asked to nominate who they see as the leaders in the field. And so if you go on to Doyle’s Guide, you would be able to see in your community which lawyers are recognised by their peers as having excellent skills in whatever field you’re looking at, whether it’s family law or commercial or crime. But that is another really good objective sort of assessment, I think, of skill level.

Can I get initial advice from a family lawyer without having to pay?

Benjamin Bryant: The next question, Heather, I love. It’s interesting and it’s a question that’s out there all the time. How much information should I be able to get out of a lawyer without having to pay for one, without having a formal sit down meeting?

Heather McKinnon: Well, you’ve hit the nail on the head. The websites of competent firms really have a huge amount of information on them nowadays. So that costs a lot of money. I mean, just the production of this podcast and our website, means you and I invest a fortune in educating the general community. My experience is that you should pay a lawyer for an initial consultation,

Benjamin Bryant: For specific advice.

Heather McKinnon: Yeah. If you’ve done your research, you’ve read all about how it works and you need specific advice on your issue, then I think that paying that initial consultation fee is probably going to be the best investment you make. I think that people who give their time away free on initial consultations probably aren’t focusing on that specific knowledge for that particular client. So for what it’s worth, you don’t go to the GP and say, “Can I come and check out my blood pressure for nothing?” This is a profession. There is a lot of training behind our skill set, and you really should invest in yourself and pay a couple of hundred dollars to get really good targeted advice right at the beginning. So you don’t go down the wrong pathway.

Benjamin Bryant: That’s right. And what we’ve said in previous podcasts, Heather, is that seeing a lawyer and getting legal advice is not you jumping on a train that you can’t stop. It is just getting advice, That’s what it’s about. And when you’re talking about children, or you’re talking about superannuation and homes and things like that, what is three or four hundred dollars an initial appointment? You know, it’s invaluable.

Should I shop around for a low priced family lawyer?

Benjamin Bryant: So I’ve checked out all the glossy websites. I’ve narrowed it down to five. Should I shop around? Should I call different lawyers to get the best bargain, the lowest price?

Heather McKinnon: Well, that’s a personal decision. There are lots of bargain hunters and there are lots of people who try to invest in quality. So it’s a personal choice. The biggest hint that I would give is if you’ve narrowed it to a couple, make sure that the one you choose has a personal fit with you. You need to feel comfortable. You need to feel safe. You need to feel supported. But I’ll give an example. This week I had an email from a client who said that I was too blunt. Now my style is tell you what you need to hear, not what you want to hear. There might be other lawyers who will stroke your ego or your needs or your neuroses, and that might be a style that’s better for you. I don’t think that’s helpful. But certainly if I’m sitting with a young parent who says, the other parents useless, hopeless and shouldn’t see the kids, I’ll do a bit of reality test. so I would say that you need to be very careful in picking somebody that does make you feel empowered, but that does not become a yes person to your, way of looking at the world. You need somebody who can objectively help you understand what’s going to happen, not just put you on the railway line, take your money and get off the other end and get on with their lives while you got a train wreck behind you.

Benjamin Bryant:  What I would say to our listeners as well, Heather, is be careful of lawyers that give you a guarantee. If people say they can’t do that, he can’t do that or she can’t do that. It’s the only way, this is what a judge would do. You’re probably in the wrong place. Because family law is grey areas or discretionary. Sure we can say with confidence what we think is going to happen, but we always have to manage people’s expectations of what may happen.

Heather McKinnon: That’s right. As I say to all young parents who I see, I don’t know whether you’re an axe murderer or you’re the best parent on earth, that’s not something that I’m able to assess. As we go along the journey we will get more objective evidence as to what’s happening within the family. But you certainly can’t give a guarantee to somebody on the first meeting, because you have no idea what you’re dealing with.

How do I prepare for my initial appointment with a family lawyer?

Benjamin Bryant: So Heather, I’ve narrowed it down to one and I’ve got an appointment coming up. How do I prepare for that initial appointment with the lawyer?

Heather McKinnon: Really, I think you go in with an open mind. A good lawyer is a forensic interviewer. So on that first meeting, they’re going to get vital information that they need to make an assessment and they will normally give you a list of homework. So they might say, okay, after this meeting, I want you to go to your bank and find out how much savings you had when you started living together. I need you to contact your superannuation fund and get an updated statement. You had a personal injury claim in 1997, I need you to see if you’ve got anything at home that shows what went into the bank. Or in a children’s matter they might want you to bring the last term school reports from the kids. But they normally won’t want that on the first appointment. The first appointment is about looking at what are the issues in this particular case and what information do we need to gather outside of names, dates of birth, dates of marriage that will help us give a more detailed advice to the client. So once you pick the person, just turn up with your mind, they’ll ask the right questions if they’re any good and they’ll give you a list of the jobs that you need to do.

What questions should I expect to be asked in my initial interview?

Benjamin Bryant:  And Heather, to play devil’s advocate, I’ve shopped around, I didn’t get the glossiest website, I didn’t check Doyles, and I’ve got the cheapest lawyer. What are the type of questions that I could be asking the lawyer if I don’t feel that they’re asking me the right questions?

Heather McKinnon: So in a children’s matter, you would ask them about interventions, other than legal intervention. So they should be referring you to family relationships centre or private child dispute practitioners who can help parents reach agreement so that the lawyers have a raft of solutions for you that aren’t based on getting into litigation. In a property matter, you should be able to ask them questions about what are the facts that are going to mean that this case isn’t an equal division case. So I always tell clients it’s like a set of scales. A forensic interviewer is going to be asking you questions that indicate whether this case is outside the normal range of an equal division. If you’re not being asked about inheritances, assets at the commencement of the relationship, any unusual financial events, then the interview is not off on the right track and you probably need to go and find somebody else.

Benjamin Bryant:  A lot of people come to us perhaps when they haven’t separated yet, they’re thinking about separation. And they want to try and make it as easy as possible and make it all go away. But unfortunately, when we see people we know, sometimes it’s just going to have to get worse before it gets better. So what we need to do is say, if this happens then this is what you can expect and if this happens then this is what you can expect. But you get much more out of your lawyer I find, in terms of independent legal advice, if separation has already taken place.

Heather McKinnon: Yeah, I certainly think those initial interviews where people are thinking about it are part of the empowerment process because you’re giving them a roadmap as to what the future is likely to look like. But when you see true ambivalence, where people are stuck in a contemptuous relationship that they can’t extract themselves from, if they continue to come back, as a lawyer you’ve just got to keep that really direct advice: I think you need to get some mental health assistance. And so our role in those cases is to really look at whether we’re the professional the person should be seeing. Often they should be at psych because they’re stuck in something that is a pattern that they can’t break.

Once you’ve hired a family lawyer, how to you make sure they stay on track?

Benjamin Bryant: Heather, I’ve just had my initial appointment with the lawyer and I’m just about to sign a retainer agreement., Once I’ve signed a retainer agreement and have formally engaged the lawyer, how can I get them to stay on track?

Heather McKinnon: So you’re always assessing at each stage whether you think you’re supported, whether you’re getting quality advice, whether you’ve got a clear understanding of what’s ahead of you.

Benjamin Bryant: And the next steps.

Heather McKinnon: But we as lawyers can only really control your side of the equation. And it is really important that if you’ve got an ex-partner that’s struggling to make clear commercial decisions, that you don’t throw the baby out with the bathwater. Often those cases need judicial intervention and your lawyer is really not able to do anything other than help you get to that judicial officer who may need the big stick, as I call it, to bring your ex into line. So lots of things happen, but be careful when you’re frustrated about progress and angry about what’s happening, that you clearly identify where that’s coming from. It may not, in fact, be from your lawyer. It may be from your ex’s inability to move on.

Benjamin Bryant: And another thing I might mention, Heather, is the fee agreement itself, the retainer, and different fee scopes. So ordinarily, people know that the lawyers charge by the hour. The Law Society sets out things that we must do. We have to do an estimate of costs, how much we charge, how much time we think we’re going to take. But as you just said, we can’t control it. And people who engage lawyers on an hourly basis will see the cost blow out. You and I, on the other hand, are different. We do fixed fees only. We don’t time record. We don’t do any of those things. What we do is we set out a schedule of fees. We say, looking through our crystal ball, we think this is the work that’s required to get your matter where I think it’s going to resolve , and this is the stages along the way and these are the costs for each of the stages. And so when our clients sign our fee agreements, they already know the work that’s ahead. So for our clients, it’s really easy for them to know if we’re on track or not because we should be following the fee agreement, the stages, to the extent that our crystal ball is effective of course. They can see, and I know that when we have clients that are getting a bit cautious we can refer them back to the fee agreement – this is where we’re up to and this is what’s still left to go.  So I think it’s really important to understand the actual retainer with your lawyer at the time of engagement.

Heather McKinnon: Yeah, you should have a very clear understanding of your best case, of expenditure and your worst case, right from day one, so that there are no nasty surprises and you understand what you’re investing in and what that investment is likely to get you at the end of the day.

Heather’s top tips for working well with your family lawyer

Benjamin Bryant: Thank you, Heather, do you have any final comments you’d like to make to help our listeners work well with a good lawyer?

Heather McKinnon: I think make sure, as I said, that there’s a free flow of communication, that your questions are answered in a timely manner, that you feel supported by the team. And if you feel at any stage that you’re not being heard, have an appointment and go through your concerns before you terminate the retainer and go somewhere else. Because, as I said, often the feelings aren’t to do with the law firm, they’re to do with the ex and the way they’re managing the process.

Benjamin Bryant: Feelings. Great word Heather. I know that a lot of people, when they separate is all about feelings, and it’s a very emotional and what they want to do is go on attack. And what they want is they want the brawniest, strongest, loudest lawyer to try and savage the other party to get back at them. But of course, that’s not what the Family Law Act is about. With parenting we’re just looking at the best interests of children. With property we’re looking at a just and equitable or fair property settlement. Like my nan says, you may catch more flies with honey than you do vinegar. It doesn’t make any sense, to slap with one hand and then ask with the other. So people have to be very cautious. If you engage a pitbull, you’ll end up with a dog’s breakfast.

Goodbye for now…

Benjamin Bryant: Well Heather, that was fabulous. I think your advice is really going to empower people to make smarter decisions to manage the legal process well. So thank you.

Heather McKinnon: You’re welcome Ben. I love working with clients who feel empowered. So if this helps the listener, it helps me

Benjamin Bryant: And that’s a great way of looking at it

Benjamin Bryant: Next month, we’re going to get very specific and talk about divorce and children on the spectrum. Divorce can be hard for all children, but autistic children tend to prefer predictable and fixed routines, familiarity and structure. If all of this flies out the windows when parents separate, it can be especially difficult for children on the spectrum to adapt. We have, as our special guest, Amy Sketcher, child psychologist from Seasons Allied Health. Amy has spent many years in the non-government and education systems working in areas from early intervention to severe trauma. Interestingly, Amy has a special interest in up-skilling parents, which is exactly what is needed for separating parents. So we are very excited to welcome her to the show.

Benjamin Bryant: If you have any specific questions about the impact of divorce on autistic children, please send them to familymatters@bryantmckinnon.com.au or message us on Facebook. And another reminder to please share this podcast with anyone who’s starting the journey of separation. And remember, you will find a transcript of today’s show and links to resources in the show notes. Goodbye for now and we hope you join us next month.


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