Legal Representation and Advice
Choosing a Lawyer
Just because a person is a lawyer does not mean that they have the skills, knowledge or experience to deal with a family law case. Not all lawyers do family law or do it well. Before engaging a lawyer it is wise to ask about their experience. The Law Society has a list of lawyers who practice family law, the Legal Aid Commission and Community Legal Centres may also be able to give guidance.
It is advisable to get legal advice if there are problems or proceedings about the children, property, or spousal maintenance etc. Complex legal questions can arise and a party without legal advice may be disadvantaged. Solicitors and barristers may not charge more than the Family Court’s scale of fees unless the client agrees in writing to a different scale.
If the parties are unable to agree about arrangements for the children or a property settlement, applications have to be made to the court. Under the Family Law Act, each party usually pays their own costs, whether the case is decided in their favour or not. One party may be ordered to pay the other’s costs if the application or appeal has no merit, one party is in difficult financial circumstances, or has conducted the proceedings so as to unnecessarily increase costs or for various other reasons.
The Legal Aid Commission of Tasmania (LACT) provides telephone advice for the cost of a local call. And a free legal advice service through its Clinic Advice Services for family law (children’s) matters. Legal Aid also provides the assistance of a Family Law Duty Lawyer who is available at the court during court lists to assist with avice, limited negotiations and representation in court. There is no means test for advice. Free advice can also be obtained at Community Legal Centres.
A person may also consult the private solicitor of their choice who can apply for legal aid on their behalf. Aid is subject to a means test. Aid is also available for appeals. If aid is approved, a minimum contribution (currently $60) is usually required although this may be waived in cases where the applicant can demonstrate that the payment of a contribution would impose real financial hardship. A contribution may be imposed or increased once proceedings are over. This is because a person who could not initially afford to bring proceedings may well be in a different position after a dispute is finalised.
Legal aid is not granted for applications for divorce unless it is imperative (in the LACT’s opinion) that the marriage be dissolved and the applicant is in a position of special hardship. Aid is not available from the LACT for enforcement of maintenance orders because the Child Support Agency can do this for free.
If in doubt about making an application for legal aid to the LACT, phone the LACT, go to a Community Legal Centre or see a lawyer. Legal Aid applications must be lodged electronically, and are usually processed in two working days. See their website.