Bowen Buchbinder Vilensky

Archive for April, 2017

The Cost of Separation – Certainty of Mind and Certainty of Legal Fees
Monday, April 10th, 2017

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By Rhonda Griffiths, Special Counsel at Bowen Buchbinder Vilensky Lawyers

10 April 2017

Along with the disruption and uncertainty surrounding a marriage breakdown separating couples have to also consider whether or not they need to engage a lawyer.

Although there are many services available for couples, in particular through the Family Relationship Centre system, in most cases it becomes very obvious that both parties need to have some legal advice.

The Process of Separation
There is always one party who knows they are going to be leaving the relationship before the other. That often causes great distress when a party realises that the other one has ceased contributing to their relationship and is out the door, or wants you to leave.

The law does not give any pathway for separation. Parties enter a relationship voluntarily and entirely without any government intervention. It is entirely their personal decision.

It is always advisable for legal advice to be obtained before the physical separation, particularly if there are children involved.

While separation is a personal decision, it may have immediate legal consequences. So the first service that lawyers can offer a person when they separate is to give them initial advice.

Mediation
Mediation can be held before Court proceedings commence. If a mediation is successful, in that the parties come to an agreement about the matters in dispute, a couple can avoid Court altogether. The couples must however prepare and lodge a Form 11 Application for Consent Orders with the Court.

Mediation can also take place during Court proceedings as part of the Court’s programming of cases to ensure that, before a case is programmed towards a trial, the parties have had the opportunity of considering an agreement.

Issuing Court Proceedings
If the mediation processes have failed or there is something urgent that needs to be attended to, Court documents will be required to set out properly what your case is about with the kind of information that the Court requires (that will not necessarily be what you would like to talk to the Court about).

Court documents have been prepared to make it possible for people to fill in the forms themselves without legal support. However, most people find the forms daunting and unfamiliar.

There is no substitute for having a competent family lawyer assist with the preparation of your Court documents. That process will also identify the orders you want the Court to make and will enable you to be advised and tutored about what to expect in your Court case and how you can assist in your case.

Once The Court Documents Have Been Lodged, What Happens Next?
Once Court documents have been filed in the Court, parties face considerable delays before their case finally comes to trial. Many cases, especially those involving children, require assistance from the Court in the early stages of the proceedings in settling urgent interim issues.

Once parties have obtained some interim orders and assistance from the Court often a case does not have to progress past that point and in many instances mediation at this stage will be successful.

Where financial matters are involved parties have to take steps to establish valuation of assets and to consider what the issues in their case are that may require accounting and legal assistance.

Readiness Hearing and Trial
A readiness hearing is a date the Court allocates by which time parties need to have prepared their trial documents, issued all necessary subpoenas, and generally be ready for a trial. A great deal of work needs to be done at this time and a Fixed Fee can be offered for this stage of the proceedings and for the trial.

The majority of cases filed in the Family Court end by agreement before a trial actually commences.

Costs of Getting Legal Advice
Many lawyers provide Family Law services on a time cost basis, meaning that when you engage them, they will work for you from the beginning of your matter until the end, sending usually monthly accounts, charging you for every 6 minutes of time spent on your matter. This includes every email, telephone call, letter and meetings. Lawyers are obliged to advise clients you at regular points in the service period what is the estimate of the legal costs of the service will be. However, this is not a quote and does not bind the lawyer if the services turn out to cost more than the estimate given by the Lawyer.

At Bowen Buchbinder Vilensky we provide Fixed Price services. This involves an assessment of what work is required at various stages of your matter and providing a fixed fee for that service. The fixed fee is agreed to in advance before any work commences which provides certainty and peace of mind.

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