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Need a barrister

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Have you had any legal advice from a recognised Family Law specialist about your case? ie Likely Outcomes

You sound near the end of your tether, do you have anyone that can do some of the running around ie telephoning for you?
I used to have legal aid but don't anymore because I'm working full time. The possible outcomes back then were different to what it could be now.

I have been to two community legal centres who both say they do not have the resources for what I require assistance with. They can't even help with writing a damn affidavit.
They have advised that my only option now is to apply for assistance through a pro bono scheme like that of the Law Society of NSW.

I have phoned and phoned and phoned many solicitors and law firms and have even taken up their offers of a free first consultation. Some didn't bother even looking at any of my documents. One suggested I reduce my hours at work or even quit my job to be able to qualify for legal aid! How I would afford to then eat….geez I don't know!

I have been in contact with a barrister in Brisbane who is also a solicitor AND a mediator who was willing to assist me but is proving to be unreliable since she can't even return my phone call after specifically on two occasions texting me that she will call at a certain time!

I work 9-5.30 Monday to Friday and barely get enough time to scoff down my lunch let alone ring around. I have thought of taking some annual leave but I'm trying to save that holiday for the impending hearing.

At the end of my tether? The look on my sons face when he sees my car drive up the driveway and how he hurries my ex to unlock the front door to see me and then see his little eyes light up is the only thing keeping me going right now.
Iamnotanna said
I found one in Brisbane and she is willing to come down here however after having sent her all my documents, I have had no response from her whatsoever to my emails, phone calls or text messages. She was going to assist me in writing an affidvait too.
I am really surprised you needed to go to Brisbane to find a Barrister. If you need a Barrister to assist you in writing your affidavit then you must have a lot of money available to waste. There are a number of good family law Barristers in NSW.

What court and town are you wanting attendance at? Is the matter family? Property or both?

How long is the hearing set down for that you need the engagement for?


Do you want to pay 3k a day or 8k a day?

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
No I don't have money to waste. I earn too much for legal aid but not enough for a private solicitor let alone barrister.
This Brisbane barrister quoted me a maxiumum of 15k to do all my affidavits etc and appear for me at hearing as long as it doesn't go over the estimated one to two days. That's a hell of a lot less than getting a solicitor and then also a barrister which will cost anywhere from 15-40k and upwards.

Matter in Family Court Parramatta - Children only
I have re read the forum posts and perhaps without going into a great deal of detail you could give us a few pointers as to your current situation. you say you need a Barrister but we are not sure why or what for.

Presumably you have been given directions to file certain documents. Therefore you have been to court. Were you self represented? Have there been interim orders made? What stage are you at in the court system?


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
I am in the midst of an LAT trial. My ex initiated proceedings in August 2010.

We recently had a Chapter 15 Expert Witness Report done by a psychiatrist and the recommendations were that contact stay as is for first 6 months which is 2 hours on a weeknight, Saturdays from 9-6 and every alternated weekend, Friday 6pm to Saturday 6pm.
The following 6 months would then increase to every fortnight Friday to Monday, keeping the midweek 2 hours and then after that our son will be school age for it to go to equal shared care, week about.
My ex agrees to the first two recommendations but not to the equal shared care.
His barrister approached me in court last time and said that their position is such that shared care does not work and that our son needs to go to school from the one home and not two. She said that this would create more instability and she quoted the report from Dr McIntosh. She then said that once our son is 12 years old, then we could look at shared care!
She also said to the judge that we live too far apart from one another (30 minute drive) and that it is not practical. The judge said that given we live in Sydney, 30 minutes is pretty good and that others travel a lot more than that daily.
We were given directions to file another affidavit and the judge said that I would need assistance.
I have been self-representing since the solicitor from Legal Aid I had put in her Notice of Ceasing to Act because I obtained full time employment. I am WAY out of my depth. I thought if I could get a barrister then I could cut some of the costs without having to get a solicitor but again, looks like more wishful thinking and more not having a clue on how it all works.
Time is running out and as it gets closer and closer to the next court date, I may be forced to agree to my exs proposal. What else can I do? I will look like a fool in court. I will be torn to shreds by my exs barrister and then Im supposed to get up and cross-examine my ex and his family members and the Psychiatrist? I cant even get a start on the affidavit let alone cross-examination!

Im in deep sh*t.
Iamnotanna said

His barrister approached me in court last time and said that their position is such that shared care does not work and that our son needs to go to school from the one home and not two.
That is sensible. Surely you would not suggest the children attending two schools? You will never get that through in a  million years.
Iamnotanna said
…She said that this would create more instability
Yes I think she is making some sense as you surely could not suggest shared time care and place them in different schools. That will never work unless there is some other part of the story we don't yet have.
Iamnotanna said
…she quoted the report from Dr McIntosh. She then said that once our son is 12 years old, then we could look at shared care!
The McIntosh report (BOTH) have been widely debated here through a large number of posts in various forums and you would definitely need to read those forums. The latest report talks about  very young children up to three years of age. The previous report is old hat and virtually  non existent. It was rebutted at the time by the Shared Parenting Council as insufficient sampling and simply poor work. Read up on Michael Green's summary on the site here. Justice Le Poer Trench also has an interesting paper and makes a considerable number of pertinent points.
Iamnotanna said
She also said to the judge that we live too far apart from one another (30 minute drive) and that it is not practical. The judge said that given we live in Sydney, 30 minutes is pretty good and that others travel a lot more than that daily. We were given directions to file another affidavit and the judge said that I would need assistance.
Yes 30 minutes in Sydney traffic is nothing of significance. I would think you should be able to get your affidavit sorted out relatively easily with a little help from other SRL's. If you want to send me a draft by email I will look over it and make comment.
Iamnotanna said
…I have been self-representing since the solicitor from Legal Aid I had put in her Notice of Ceasing to Act because I obtained full time employment. I am WAY out of my depth. I thought if I could get a barrister then I could cut some of the costs without having to get a solicitor but again, looks like more wishful thinking and more not having a clue on how it all works.

Time is running out and as it gets closer and closer to the next court date, I may be forced to agree to my exs proposal. What else can I do? I will look like a fool in court. I will be torn to shreds by my exs barrister and then Im supposed to get up and cross-examine my ex and his family members and the Psychiatrist? I cant even get a start on the affidavit let alone cross-examination!

Im in deep sh*t.
What assistance have you had so far from the SRL group. It seems to me there is little to agree to here and that matters are relatively simple. You can email me and give me a draft outline of your affidavit. I assume that you are filing a response affidavit. Please provide me not more than a two page case outline of what has been going on.

   Overall snapshot or outline of the case and the issues in dispute.
   Chronology
   Current arrangements
   Material relied on by:
o   YOU
   Orders sought by:
o   YOU
   Summary of argument:

I have provided examples of the first two, Overall snapshot or outline of the case and the issues in dispute AND Chronology


Overall snap shot (this is a sample) looks like:


APPLICATIONS BEFORE THE COURT

The parties are the parents of two twin children JAMES and LILY born 13/01/2007. They have no competing proposals for parenting orders. The mother, Ms. Y has a financial claim.

Ms. Y filed her application on (date unknown) in the Perth Registry (we assume) Family Court of Western Australia. There are no amended applications. She is seeking only orders for a single payment of 15 million in cash from Mr. R. There are no parenting orders being sought.

Ms Y has received from the father 2 million, of which Ms Ys solicitors advise  that 1 million has been set aside in her solicitors trust fund on account of possible legal costs, 1 million is support of the mother and the children and that all the money is to be treated as spousal maintenance. (She is also driving a Mercedes Benz which our client advises was leased, presumably by the company, during the marriage.

Ms. Y believes that a Binding Financial Agreement, entered into before they were married, is not valid, signed under pressure/duress, and should be overturned and that she should be entitled to the payment amount sought.

There appear to be some issues with the validity or otherwise of the certificates of independent legal advice although the Binding Financial Agreement is correct and proper.

Ms. Y argues that the 2 million paid is Spousal Maintenance  and that using principals of contract and equity that the Husband has engaged in unconscionable behaviour and so she should be compensated through a valuation of the Fathers company.

Ms. Ys proposal is set out in items Paragraphs 23 through 25 on the affidavit provided on dd/mm an attached to file 12345/2010

The Father, our client, is a successful businessman, has significant wealth which has not been valued but is disclosed to the parties as at least 160 million in company shares and assets in mining entities and related companies.

Mr. R has paid Ms. Y 2 million after separation, (for each of the children, pursuant to a financial agreement that was entered into shortly before they were married (9) (14). He believes Ms. Y is entitled to a house worth $1 million in a suburb of her choice in Perth, a car worth up to $60,000 and a lump sum entitlement of 1 million per child. Our client has agreed to pay $3.5 Million in consideration which includes reasonable expenses, including private school fees.

It is our clients view that Ms. Y could earn a gross income of over $100,000 per annum from the interest on the lump sum entitlement and that is adequate. Ms Y is also a graduate from Bg University of foreign languages has previously worked as an interpreter and is of an age that would not present any impediment to entering the work force. She has at least 30 years available as sustainable income earning potential.

The father filed and served a response on (date unknown) and argues although there are problems with the Certificate of Independent Legal Advice given under Section 90C of the FLA, it is his belief that S90KA may be used to validate the financial agreement entered into (20).

He believes if the Certificate of Independent Advice was rectified then the financial agreement would be upheld and the court would then have no jurisdiction to deal with property division matters. (26).

He further argues that if the Binding Financial Agreement is not upheld there should be no requirement to assess his worth exactly as that would be unnecessary and intrusive. He could pay the 15 million if ordered to do so but argues it is not a just and equitable order and further, the court should cap any claims at the amount that Ms. Y Sought.

He also deposes that the marriage was short and that he contributed all the financial contributions as well as a range of other listed expenses. He argues that this overwhelming contribution should be taken into account and proposes she is paid $3.5 million (27).

Our clients proposal is set out in Paragraphs 26  27 on the back sheet for Counsel

Both solicitors involved in the making of the financial agreement are on affidavit and will need to give evidence in the proceedings.  Mr. T the mothers solicitor and Ms. G the fathers previous, (no longer) solicitor.

Chronology

1956   Father born.
1979   Mother born.
2000   Mother graduated Beijing University and employed as English translator
2000-2004   Parties entered a relationship
FEBRUARY 2003   Father second marriage ended
14 JANUARY 2004   Father proposed to Mother
15 JANUARY 2004   Mother and Father attended Ms. G (the fathers ex solicitor) office in relation to the financial agreement. Ms. G recalls she advised the previous agreement may not suit and that she needed more time to prepare same.
15 JANUARY 2004   Mother visited Mr T for independent legal advice, he signed the agreement and Mother obtains Certificate. Mr T cannot remember if he signed before or after the Mother.
14 FEBRUARY 2004   Parties married.
13 JANUARY 2007    Children James and Lily are born
JUNE 2009    Parties separated

Last edit: by Secretary SPCA


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
No I wasn't suggesting 2 different schools. The barrister said going to the one school from 2 different homes, being mine and my ex's home, would create instability.

I will get as much paperwork together as I can and email you tomorrow. Thank you!

I have had no assitance from the SRL group.

A quick question, do I have to address the same issues that were raised in my ex's initiating application and affidavit. His allegations are not an issue anymore I believe. The psychiatrist found no evidence of them. Does that mean it can't be brought up again or will they try to persue that again?
Iamnotanna said
No I wasn't suggesting 2 different schools. The barrister said going to the one school from 2 different homes, being mine and my ex's home, would create instability.
Complete nonsense … Comments made simply to intimidate and gain concessions during the invitation to treat.
Iamnotanna said
…A quick question, do I have to address the same issues that were raised in my ex's initiating application and affidavit. His allegations are not an issue any more I believe. The psychiatrist found no evidence of them. Does that mean it can't be brought up again or will they try to persue that again?
Anything in affidavit form can be brought up, although in a final hearing if they are bring evidence from a third party (psychiatrist) that party will need to be available for cross examination. I would focus only on refuting the last affidavit material in the context of positive issues for continued and extended contact. How are you going to effect and operate that contact? Are there any impediments in you doing what you are seeking? How will your proposal work? What convincing argument do you have to suggest the arrangement is going to be in the best interests of the children? Are your suggestions PRACTICAL? Can they easily be effected? Look at 65DAA? Have you got a set of orders you are seeking? Do they include orders for "Shared Parental responsibility"? or is that being rebutted? Are they different to the other side and if so which ones do you agree to?

You will not win any points for mud raking over insignificant issues. If you prepare a case outline which will have the key issues at stake, a time line of events and your responding affidavit that will be enough to see what direction you are heading. This is an LAT (Less Adversarial Trial) that means it will be run by the judicial officer and is not to be managed as an adversarial trial where each party try's to show the other up as a bad parent and covers items like, who left the toilet seat up and why. You need to step out of the minutia and get the big issues dealt with here. As an SRL you will be given additional court support but if you do not engage counsel then you need to start reading ALL of the key sections of the Act. It is not a task for the faint hearted. It is a lot of work…

At the very minimum you must know backwards and forwards sections 61DA, 60CC primary and secondary considerations, 60CC(3) particularly item ( c) and without fail 65DAA. You must understand what "practical" means in 65DAA and what substantial and significant time means.  

There are two or three Barristers in Sydney who will do a good job but you need to get your paper work in order and step up here first. You cannot leave such important work to others. If you have a date and wish to engage counsel you need to do so earlier than later.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
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