At times there is a misconception that lawyers say or do particular things to ‘rack up more fees’. In the practice I work in, I can safely say the actions and advice we offer are purely for the benefit of our clients. We manage multiple cases at a time and don’t wish to unduly extend or complicate the process because we know it is often an emotional one and needs to be dealt with in a professional, supportive and timely manner for all parties involved.
Whist we encourage our clients to try and resolve issues with their partners sometimes that is not appropriate, most commonly where there is a power or knowledge imbalance. From time to time we see people ‘going rogue’ on their family lawyer and it does not always look like what you may imagine.
What does ‘going rogue’ look like?
In my mind, ‘going rogue’ is when clients look outside the advice of their legal representative, or fail to seek advice before acting, often thinking they are doing the right thing by themselves, their former partner, their children, or all of the above.
The most common error I see people make is when they start direct communication with their former spouse during negotiations without first discussing this with their lawyer. When it comes time to negotiate and/or make agreements about a financial and property settlement, your lawyer will have already advised you as to your position. While it may seem harmless, an attempt to negotiate the terms of your separation without proper advice beforehand can result in you agreeing to something you later have to renege on which increases ill will.
When offers are made through your lawyer or through a mediation process, they are deemed ‘without prejudice’ which means that they cannot be used as evidence if your matter was to go to Court (save for the issue of costs). If you start negotiations with your former spouse, outside of the negotiations made through your family lawyer, there is also a risk that these discussions will not be considered “without prejudice” and can potentially be put before the Court as evidence.
Another example is when you pass on advice from your lawyer to a third party. Any advice given, whether verbal or written, is considered ‘privileged’ which means that it is confidential (between lawyer and client) and should not be shared. A lawyer will always advise that any advice they provide you is privileged but many times people seek to pass on this information to their accountant, financial advisor or a family member as they are looking to seek additional input. Sharing your lawyers advice can potentially waive privilege, meaning the advice no longer holds the status of ‘privileged’ or confidential. For this reason, it is very important when you are engaging in direct discussions with your former spouse, not to say things like “my lawyers advised me…” or to provide your former spouse with any written advice you receive from your lawyer.
When it comes to parenting arrangements, if people are seeking a “shared care” arrangement, a significant factor the Court will consider is whether there is a good co-parenting relationship between the parents. During a separation, at times it can be hard for parents to stay focussed on the best interests of the children and building this co-parenting relationship when there is high conflict between the parents and difficult circumstances surrounding their separation. When I think of a time when a client failed to follow my advice, which was to take a “child focussed” approach in their dealings with their former spouse, it was the text messages sent between the two parents that did not reflect well on my client. While the communication that had gone through our office on behalf of our client was child focussed and suggested that the parents had a good co-parenting relationship, the text messages sent from my client to their former spouse were in complete contrast to this. The goal for this client, who was aiming for equal parenting time, was considerably harder to achieve when evidence like this is presented to the Court.
Why people ‘go rogue’ on their family lawyer
Often people take these steps and make these mistakes because they are disillusioned with how long some things take in the process of separation and divorce. Sometimes it is because their situation is high-conflict, and they believe a different approach will be more effective. Other times people make these errors because they are looking to minimise costs. What happens many times though is that this approach costs them more because their lawyer needs to fix, or attempt to fix, the inadvertent errors.
Think twice before you act
If your former partner is frustrating you, or you feel you are about to lose your temper, it is important to carefully consider your words as they can come back to bite you in the future. In parenting matters, even parents who are focussed on achieving an outcome that is in the best interests of their children, can at times fall victim to getting hooked into a dispute with their former partner rather than focussing on the bigger picture. If you are about to fire off a text message in the heat of the moment, you should ask yourself “Am I okay with this message being annexed to an Affidavit and put before the Court?”. The Family Court and Federal Circuit Court are courts of impression so you need to consider how these things might be seen by a court.
If you are going through a property settlement and think it is in your best interests to start some direct negotiations with your former spouse, it may be, but you should always speak with your lawyer about this first. They will be able to discuss this with you and how to approach any direct negotiations.
Ultimately though, trust in the professional you have selected to represent you. Family Law is a complex area of law and decisions made with the advice of a specialist family lawyer are your very best chance of achieving the outcome you hope for.