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Do I need a Lawyer?

Podcast Episode by Pearsons Lawyers
17 October 2020

(Transcription)

Leanne Abela:
Hello and welcome to Pearsons Law. I’m Leanne Abela

Joe Schepis:
And I’m Joe Schepis.

Leanne Abela:
And this is the first in series one, the first podcast in relation to separation and family law. The remaining podcasts in this series will cover what happens at first interview with a client in family law. Can my partner and I reach agreement? What happens if we do? What happens if my partner and I can’t reach agreement? What is mediation, child and property, and last do I have to go to court? Of course, that will be followed by other series. And for today, the topic of discussion is …

Joe Schepis:
Do I need a lawyer? And the answer to that question is it depends. You don’t need a lawyer. There’s nothing that mandates that you have to have a lawyer. But it might be a very good idea to get one at different stages to get advice so that you know where you’re going.

Leanne Abela:
A lot of people, Joe, don’t even know whether or not they need a lawyer. We often get calls from people because our first interview is free and people ask, well, do I even have it de facto relationship? Because that’s often a blurry issue. Have they been together long enough? And really what we say to them, you might as well ring and find out and we’ll tell you immediately, listen, you do have a relationship or you don’t need a relationship. And we tell you whether or not you need a lawyer or you don’t. Some people don’t need a lawyer, and we’re going to cover that in today’s topic.

Joe Schepis:
Often people come in to see us before they’ve even separated to get advice about what would happen if I did separate? What would be my rights? What would be my obligations? And it’s important they know that so they can go away with some information and knowledge about what impacts may result from their separating from their partner.

Leanne Abela:
Yeah. A lot of people really feel that knowledge is power and we’re really happy to help them with that information. The first topic we always discuss with clients at their first interview is children. Because of course children are the most important part of separation and people don’t need to see a lawyer if they can work out the children themselves. And they can do that by having discussions between themselves, if it’s an amicable separation. Sorting out things like who will the children live with? Who will they spend time with? When will that time be? Will it be after school for dinner? Will it be overnight during a school night? Will it be alternate weekends? Who’ll pick them up from school? Who will take them to school, all those sorts of things.

Joe Schepis:
Sometimes people can’t reach an agreement and come to see us and say, well, what are my rights? What are my obligations in relation to parenting matters? And we can give advice about what likely outcomes would result if the matter went to court. And we can help them with negotiations, either doing a letter to the other parent, putting them in the direction of mediation to assist them with negotiating parenting matters. But it’s important that go along a pathway where they can have some open dialogue and open discussion to look at the matters that concern them about the parenting and get some dialogue and some negotiations happening.

Leanne Abela:
Often Joe, we get phone calls, don’t we, from clients who are still under the same roof and want to know what happens when they actually physically separate. And while they’ve thought about their own accommodation, they actually haven’t thought about what will happen with the children. And I had one recently where the parents were moving out on a week about basis and the other parent was remaining with the children. So, the family home had the children, that’s three children in it. Dad moved out one week leaving mum in the house. Mum moved out the other week, leaving dad in the house. And what was really interesting was that they hadn’t thought of what would happen in the future moving forward. They hadn’t discussed well, we can’t continue like this forever because one of us will end up keeping the house or the house will be sold.

Leanne Abela:
It’s really important to think of those issues. And there’s different ways you can go about it, but our recommendation would always be, look, get your free advice so that when you go to mediation, you’re fully aware of what your entitlements are. And you’re fully aware of what the different options are. And because both Joe and I have had 35 years each in family law, we can be quite spontaneous and creative in coming up with a solution. We might’ve thought of a solution or a routine that you may not have thought of between yourselves. But because we’ve been exposed to many different separations, we can come up with a solution for you. We are very solution focused.

Joe Schepis:
Leanne, that actually demonstrates that over time, there might be different agreements. There might be in agreement immediately after separation to last for a few months, or it could be a year. But then as people’s circumstances change, they might be different advice and different issues arise from time to time. For example, relocations. Some of them want to move away interstate or even overseas and take the children away. And that’s going to involve a whole host of new negotiations and new discussions about how to navigate through the issues that arise from that. The one solution fits all is not really the way that it goes and it’s going to change all the time. Therefore, it might be that lawyers are involved at different stages throughout a separation period that might go for many years. That’s a relational paradigm. And of course then there’s the financial matters.

Joe Schepis:
And one of the best ones I have is that people can reach an agreement, formalize a property settlement by way of a settlement between themselves, sell the home, split the money up, but not go and see lawyers and not have it documented. And think they’ve got a settlement. And then some years later find out that the other spouse makes a new claim saying, “No, that wasn’t a property settlement. Yes, we sold the house. Yes, we divided the money. But now we need to have a property settlement. And we’re going to start the whole negotiations again.” It’s important that even if you reach an agreement, you go and see a lawyer to get advice about the agreement itself, whether it’s a good agreement for you, and also to have it documented by way of consent orders or a binding financial agreement so that you’re protected in the future.

Leanne Abela:
Yeah, that’s like shutting the door on the financial aspect of your case and making sure no one can come back later when they’re in a new relationship or when they’re thinking about what they could have claimed or should have claimed, or somebody new in their lives is in their ear about, have you thought about making a claim against your ex-husband for this or for that.

Joe Schepis:
Or superannuation.

Leanne Abela:
Or superannuation, which grows. And it’s not the assets when you’re separated, it’s the assets when you do your settlement. So, you might be horrified to think that you might’ve had $10 in superannuation then, and now 10 years later, it’s worth a hundred thousand or whatever it’s grown to. And that’s the figure that’s going to be taken into account.

Joe Schepis:
Or you’ve won tax lotto or an inheritance.

Leanne Abela:
An inheritance is very common. Isn’t it?

Joe Schepis:
It is very common.

Leanne Abela:
An inheritance is a big deal. And it’s much better to shut the door. In particularly when you can agree, because why not do it when you can agree? I mean, it’s almost counter-intuitive, isn’t it? Because you think, well, if I can agree now and look at how well we get along, why would I want to go to a lawyer to do it formally. But that’s the time to do it because that’s cheap as compared to when you don’t agree much later on, because no one can crystal ball about what it is it’s going to make you argue with your partner in the future. It could be the new partners you each have in your lives, or it could be something completely innocent that causes one of you to want to make a claim.

Joe Schepis:
Well then of course, when it’s years later, you have to try to unscramble the scrambled eggs to try and put it all back together again, and deal with all the financial transactions that have occurred in the meantime. And what I think people don’t realize is that even though you go to see a lawyer, it doesn’t necessarily mean you have to go to court. A lawyer is there to negotiate, facilitate, and to give you advice about your options so you know where you stand. The lawyer is also there to try and get you to come to an agreement and to formalize your agreement so there’s no comeback in the future. 90 to 95% of our cases resolved by negotiation, settled through letters, round table conferences, mediation, and those sorts of matters. It’s a very small percentage you’d go to court. And even those that do go to court, a large percent of those resolve as well.

Leanne Abela:
Mind you, there are some instances where we’ll be saying to people, you need to go to court. And sometimes that’s an emergency situation where someone’s run off with a child and they’re not allowing the other parent to see the child, or where one person has perhaps moved interstate and we need to get the children back, and it’s fine for a party to move interstate, but they can’t take the children interstate with them. Or when there’s a risk to the child or the children, because they’re with a particular parent because of drug or alcohol issues. Those sorts of instances, you really need to act quickly to protect the children. Sometimes we also run to court to get injunctions in relation to funds being removed. Typically, it might be somebody taking money out of the offset account or drawing down against the mortgage so that you’re depleting the assets. Well, you might need to get injunction to stop that happening.

Leanne Abela:
Or you’ve separated and one of you cannot support yourselves while the other person can, then someone might need urgent spousal maintenance, or urgent child maintenance. In that instance, whilst we would send a letter first, we wouldn’t wait too long for a response, maybe 14 days, 21 days. And then we’d say to our client, listen, we recommend you get to court because there is going to be no way that the other party is going to come to the table with a reasonable proposal. And so the longer you wait, the more you’re missing out or in particularly, with the children at risk, you can’t.

Joe Schepis:
I often tell my clients to have in mind, an amount of money or an amount of time that they want to invest in negotiations. And then after that money is spent all that time has elapsed to reconsider to see how fruitful the negotiations are to decide, well, if we’re not getting anywhere and we’re just going round and round in circles, wasting time, wasting money. Sometimes litigation is the best option to negotiating if the other party is not cooperating or not being reasonable. Litigation is there as a last resort, but it’s important. And if you’re going to litigate, lawyers are important because they make sure that you get all the evidence that you need to present to the court and to the judge in a proper fashion so the judge understands the issues and the concerns. The evidence is there to support the orders that you’re seeking so that the matter can be dealt with expeditiously. Otherwise, if the evidence is not there it can lead to delays, it can lead to unnecessary costs. And there’s always the exposure that the outcomes that you want are not achieved.

Leanne Abela:
That’s right. They’re probably the main reasons why you may need to speak to a lawyer, but that does not mean that the result will be that you go to court. And really there’s no harm in making the most of a free appointment so that you can also get the most out of your mediation. You’re well-equipped, you’ve got the tools and the knowledge. That’s it for whether or not I need a lawyer. And in the next episode, we will discuss what happens at the first interview, because many people are somewhat intimidated or worry about what’s going to happen at a first interview with a lawyer. Certainly our firm sends the clients a short registration form, just on background information, such as date of birth, et cetera. And we also send a list of the types of questions we’re going to ask so that people can think about them first. And I don’t know about you, Joe. I find my clients are really assisted by getting that questionnaire first.

Joe Schepis:
Oh, definitely. I think that with that questionnaire, it makes them turn their mind to the questions that we’re going to ask so that they’ve got the information at hand and they make the most use of that half hour free consultation.

Leanne Abela:
We’re going to leave you in suspense because the next episode, we’re going to discuss what those questions are and run you through a typical 30-minute interview, not for the entire 30 minutes, but to describe to you what sort of questions are asked and how it is we get to the end point of the first interview, which is free of charge, where we tell you exactly what you’re entitled to with respect to the children and the property. Until then …

Joe Schepis:
See you next time.

Pearsons Family Lawyers

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