When Should You Brief a Family Law Barrister?

Early Involvement of Counsel in Family Law Matters

Knowing when to brief a family law barrister can be important where a matter has developed beyond routine advice or negotiation and requires independent advice, strategic input or advocacy.

There is no single stage at which counsel must be briefed. The appropriate time will depend on the nature of the issues, the complexity of the evidence, the stage of the proceedings and the significance of the potential outcome for the client.

Before Family Law Proceedings Commence

Counsel does not need to be briefed only after proceedings have begun.

In appropriate matters, an instructing solicitor may consider involving a family law barrister before an application is filed, particularly where the legal or factual issues are complex or the proposed proceedings may have significant consequences for the client.

Early advice may assist in identifying the issues likely to require determination, assessing the available evidence and considering the strengths and weaknesses of the client’s position before important decisions are made.

It may also assist the solicitor and client in evaluating whether a negotiated resolution remains achievable or whether proceedings are likely to be required.

The Federal Circuit and Family Court of Australia provides information about the steps parties may need to take before commencing family law proceedings.

When an Urgent or Interim Hearing Is Approaching

The need to brief counsel can become more immediate where an urgent application or interim hearing is approaching.

Interim decisions can have significant practical consequences while proceedings continue towards resolution.

In parenting proceedings, interim issues may concern where a child lives, time with a parent, relocation, recovery, family violence or allegations of risk.

In financial proceedings, interim issues may concern property, injunctions, disclosure, maintenance or the preservation of assets.

Where an interim hearing involves substantial consequences or difficult legal or evidentiary issues, briefing counsel sufficiently early provides an opportunity to consider the case before the hearing rather than only when the matter reaches Court.

The Federal Circuit and Family Court provides further information about family law hearing types and interim hearings.

When Parenting Issues Become Complex

Parenting proceedings can become particularly complex where the parties disagree about fundamental arrangements for their children or where allegations of risk are involved.

Complexity may arise in matters concerning relocation, family violence, recovery of children, competing parenting proposals or significant disputes about the evidence.

Under the Family Law Act 1975, the best interests of the child are the paramount consideration when the Court determines whether to make a particular parenting order.

For more information about Chris Garlick’s work in this area, see Parenting Matters.

Where relocation is an issue, see Can I Move Away With My Child After Separation?.

When Property Proceedings Become Complex

Property matters may also reach a point where counsel’s involvement is appropriate.

Complexity can arise where proceedings involve substantial property interests, businesses, companies, trusts, disputed contributions, valuation evidence, disclosure issues or disagreement about the legal characterisation of assets and liabilities.

The significance of the potential outcome may also justify obtaining counsel’s advice before a position is finalised or the matter proceeds to a contested hearing.

For further information about these matters, see Property Settlement.

When the Evidence Becomes Critical

Family law proceedings frequently turn on evidence as much as the legal principles involved.

As a matter develops, questions may arise about affidavit evidence, expert reports, financial records, valuations, subpoenaed material, family reports or conflicting accounts of relevant events.

Involving counsel before evidence is finalised can provide an opportunity to identify evidentiary issues and consider whether further material may be required.

This can become particularly important as an interim or final hearing approaches.

Before Dispute Resolution or Settlement

Briefing a barrister does not necessarily mean that a family law matter is heading to trial.

There may be value in obtaining counsel’s assessment before an important negotiation, mediation or other dispute resolution event.

An independent assessment of the legal issues, evidence and litigation risk may assist the instructing solicitor and client when considering settlement proposals and deciding whether an agreement appropriately addresses the issues in dispute.

The Federal Circuit and Family Court encourages parties, where appropriate, to resolve disputes without the need for a final hearing and provides information about dispute resolution in family law matters.

When a Final Hearing Is Likely

Where negotiations and dispute resolution have not resolved the matter, the prospect of a final hearing provides another natural point at which counsel may become involved.

By this stage, the proceedings may involve substantial evidence, competing factual accounts, expert material and questions requiring detailed legal analysis.

Briefing counsel before the final stages of preparation allows sufficient time to understand the history of the proceedings, identify the issues requiring determination and consider the evidence before the matter is heard.

The Appropriate Time Depends on the Matter

There is no universal answer to when to brief a family law barrister.

In some matters, counsel may provide the greatest assistance before proceedings commence. In others, the need may arise when an urgent application is required, complex evidence emerges, an interim hearing is listed, negotiations reach an important stage or the matter is progressing towards final hearing.

The relevant question for the instructing solicitor is whether independent advice or advocacy from counsel may assist in identifying the issues, assessing the evidence and determining how the client’s case should proceed.

Chris Garlick accepts briefs from solicitors throughout Australia in family law matters.

For further information about instructing counsel, see Brief a Family Law Barrister.