The Gentle Art of Advocacy in the Family Court

I am aware that most of you here today are barristers still relatively new to the Bar. But I am also aware that some of you are barristers who have been in practice for some years.

For those of you who are pupils, I am blissfully unaware of compulsory attendance requirements and, as such, shall proceed on the basis that all of you are seriously interested in receiving briefs to appear in the family courts, namely the Family Court and the Federal Magistrates Court exercising family law jurisdiction.

Although the heading I provided to the Bar Association’s CPD organisers in respect of this talk was “The Gentle Art of Advocacy in the Family Court”, I intend to address matters pertaining to a barrister’s practice in family law generally. I will do that by giving you some of my own opinions, based on 2 years practice as a solicitor doing family law, 20 years as a barrister doing family law and, more recently, of course, 10 months sitting as a judge of the Family Court, as to how you might improve and grow your family law practice.

The family law courts are not the exclusive preserve of a select group of barristers. Any and all of you are most welcome to appear in the two courts. There is a vast amount of family law work out there and available for barristers. The judges of the Family Court, including its Full Court, and the magistrates of the FMC, are regularly remarking that they would like to see a much bigger number of barristers appearing in our courts. That is indeed the case here in Brisbane. We mean absolutely no disrespect to the barristers who already regularly appear in our courts when we say that we genuinely hope more of you will start making regular appearances in our courts. There is room for many more at the inn, if I may use that expression at this time of year, and a greater diversity of barristers appearing in our courts can only improve the outcome for all the stakeholders. So please remember, you are all most welcome in our courts and you should feel so.

For the barristers starting your careers at the Bar, I would be surprised if you were not attracted to the Bar by the exciting prospect of advocacy on your feet in a Court room. More and more, it seems to be said, the jurisdictions where you get the most exposure to that prospect here in Queensland are crime, planning and environment and family law. In my experience, that is certainly true in the practice of family law. We are very busy courts, and some would say, we have more work than the current complement of judicial officers can reasonably handle. I, of course, leave that to others to say. One thing is certain, if you want a practice where you get to stand up a lot in Court and argue cases, then family law will provide you with that opportunity.

Some of you might ask how you break into the family law arena as a junior barrister, particularly if you have not practiced family law as a solicitor before your call to the Bar.

I provide a few quick suggestions.

(i) Link up with more senior barristers who practice in family law and are already going to the family law courts regularly. Go with them to Court. Learn from them. Offer devilling services to them.

(ii) Link up with solicitors who practice family law. Make friends with. Take them to coffee or lunch. Mix with them and get to know them. One very appropriate way to do that is by joining the Family Law Practitioners Association of Queensland. You will find the Association’s newly revamped website to discover how to join and be kept up to date with their happenings which include regular social events and one of the best conferences in the country held annually, and many CPD events that are generally accredited for compulsory CPD purposes.

(iii) Never ever shy away from doing a family law matter if it is offered to you, even if at fairly short notice.

(iv) Advise the Bar Association that you are prepared to do pro bono work for needy family law clients and then actually do some matters pro bono when they come your way.

Of course, you build your practice as a new barrister by being seen by and becoming known by solicitors and other barristers, particularly the ones you appear against who actually get to see how you perform. You need to be appearing and performing for that to happen. Take what ever you can get to start with.

How do you best impress your instructing solicitors or, for that matter, solicitors generally?

Some suggestions.

(i) Never, ever ask a solicitor for a brief. Do not ever break that rule. The years have taught me that solicitors do not respect barristers, even the most junior, who ask them to give them briefs. Let your knowledge, your performance, your enthusiasm, your work ethic and your personality do the touting for you.

(ii) Always be available for solicitors, any time, on the matter they have briefed you on and in respect of any simple bit of advice they might need on any matter that just takes a short phone call or an email to deal with. Let them know that, and perform in that respect.

Be very discrete though, as to how you charge for that service in your early years. A good rule of thumb being, in my view, not to charge for it unless the solicitor specifically insists that you do. Gradually as your practice grows you can become more and more selective in how you do that. When you begin to be able to afford to do it, and you will all know when that is, you can start to be selective in respect of which solicitors you still provide that service to. Your briefing stable will gradually develop and you should never tire of providing gratuitous assistance to those who over time continue to put the money in your bank account.

(iii) Always read your briefs. Ideally, that is best done soon after you get it across your desk. The sooner you call your solicitor up to discuss something that demonstrates you have read the brief, after first receiving the brief, the greater you will impress her.

Of course, busy practices mean that reading a brief from start to finish the moment it hits your desk is often nigh on impossible. Most importantly though, always have read your brief thoroughly before you meet and confer with your client and before you go to Court. Try to confer with your client a reasonable period of time before the day you are in Court. That impresses both client and solicitor as to how important you regard the matter and being totally prepared by the day of court.

Just as real estate has the three P’s of ‘position, position, position’ so too does advocacy have its three P’s— “preparation, preparation, preparation’. The first part of that process is the careful reading of your brief. You should know, if you do not already, that solicitors despair about barristers not reading their briefs. They wonder why they bother preparing them and charging clients for them if the barrister does not bother to read them. Do not expect more work from a good solicitor if they get a sense that you have not read the brief they sent you.

(iv) Engage your solicitor in the process of preparation, representation and advocacy. Make them feel an equally important part of a team. Ask them their opinions and advice and for their input. Treat any they give respectfully. Deal with them as equals in the client representation process and do not ever make them think, save in some form of jest of course, that you regard yourself as a barrister somehow more important in the process than them.

(v) Never denigrate your solicitor or blame them for anything perceived to be wrong, either to your client or to the Court. One of the attributes of a good advocate is courage and that includes courage to absorb criticism and attribution of responsibility for mistakes made by the team, or even solely by the solicitor, without trying to deflect it away from yourself, even if you were not in any way responsible. Solicitors appreciate that.

(vi) Never double book or double brief and try hard not to flick a brief you have accepted because of what you perceive is a better offer. Solicitors do not like either of those practices in the barristers they have briefed. If you do the latter, be prepared for the solicitor you have flicked to be very reluctant to brief you again. If you do the former, be prepared for the court to call you on at the same time as you are in the other court and be prepared to deal with that. It is usually not pretty and you can expect Murphy’s law to apply, that is, for both matters to get called on at the same time in two different courts, particularly when you double brief.

(vii) Give your solicitor credit for the good things they are responsible for both to your client and to the Court. Do not try to over flatter but certainly do not forget to compliment and encourage where appropriate.

Most barristers starting out are working with solicitors who are also, often, just starting out. You will grow and develop your practices and experience together. If you impress these solicitors you will ensure loyalty of briefing and, in some cases, develop long-term professional relationships and friendships. Never underestimate the impact of kindness, encouragement and compliments.

How do you impress your clients?

In my experience, perhaps the very best way to impress solicitors is for you to make and keep the clients they entrust to your professional care happy and satisfied with your service. If the clients go away from your presence in the company of the solicitor, as they so often do after conferences or court dates, and they are complimentary about you to the solicitor then that will go along way towards securing more work from that solicitor.

Some suggestions as to how to impress the client:-

(i) Be totally prepared. Know the names and ages of their children, where they live, what school their children go to, when they separated from their former partner, what their current partner’s name is, how much property they have etc. That is, know the small detail that demonstrates to them that you have read the brief carefully, retained the information and that you actually care about them particularly and their matter.

(ii) Demonstrate genuine empathy. Of course you all know how traumatic any litigation can be for the people involved. Family law litigation, be it about children or property, involves some of the toughest emotional turmoil people can experience in their lives. Anyone who has ever broken up with a partner could understand that. We cannot expect clients to be perfectly in control of their emotions and to be acting totally rationally. Get on top of that as a family law barrister and you will succeed. If you do not think you have the empathy for people in such circumstances then maybe family law is not for you. But I urge you not to write off such practice without trying it for a while and giving it a go.

(iii) Display total professional honesty. Do not tell clients something just because you think it is what they want to hear. Do not say something or take a particular course in the court room because you believe, contrary to your own better judgment, it is simply what the client would want to hear or see. I believe family law clients prefer honest assessments of their prospects. Even if you think they might not, when the result at the end of the day is more akin to what your honest assessment was as opposed to what you think they might want to hear, they will respect you more for having given it in a timely fashion.

(iv) Do not let the client experience you conferring with your solicitor in the absence of the client. If you need to do that, you should do it in a way that your client does not observe. I do not think it a good idea to have your solicitor and client turn up at your chambers for a conference for you then to just invite the solicitor in for a private conferral before seeing the client. Similarly, at court you should try to avoid it or do it in discrete ways. Family law clients are emotionally very vulnerable. It does not take much for conspiracy theories to be generated. You and your solicitor want to retain your client’s confidence and trust. It is best not to deliberately exclude the client from discussions between the two of you.

(v) When conferring with the other barrister and/or solicitor, try to avoid doing that within earshot or even line of sight of your own client or the other side’s client. I have never considered it appropriate for clients to be able to hear or see the lawyers discussing the matter. It has a tendency to cause behaviour to be modified in a negative fashion, in my opinion. You want frankness and courtesy from your opponent, not a show for one or other of the clients.

How to best deal with your Opponent?

Your family law practice will grow by, amongst other things, barristers who you have been against recommending you as capable counsel if they are jammed when a solicitor seeks to brief them. That will only happen, of course, if they

(a) liked you and trusted you enough to expect that you would not undermine them with the solicitor and

(b) thought you capable enough to be able to recommend you to that solicitor such as not to cast doubt on their own professional judgment.

Therefore, a few suggestions:-

(i) Always be courteous and honest, particularly with more senior opponents. Do not forget the big dose of courage though, tempered with equally big doses of discretion and respect.

(ii) Do not say something that you do not mean. For example, do not say “this is my client’s absolute last offer” if 15 minutes later you are going to be going back to your opponent with another “last offer”. Reputations for good and bad practice can be readily acquired at the family law Bar. A reputation as to bad practice will take a long time to work off.

(iii) Always be open to discussion with a view to settling or at least narrowing issues. If you are in a parenting case, for example, where there is a raft of matters that are agreed or could be agreed with a bit of discussion, take care of those as soon as you can with your opponent. Once the negotiation process begins in respect of these smaller, easily resolved matters, you will be surprised how the bigger disputes can start to resolve as well.

(iv) Never say something different in Court to what you told your opponent outside Court. I repeat what I said about reputation for bad practice.

(v) Do not ambush your opponent. Do not spring applications, substantial arguments or evidence upon your opponent without prior warning. The family courts are not courts of ambush and you will get little thanks or praise from anyone for such things.

Remember, not only do you grow your practice by your reputation amongst your peers at the Bar and the solicitors who work in the area but also if you get to the point where you ultimately want to make application for appointment as Senior Counsel, the view others around you at the Bar hold of you is a critical part of that selection process. If your professional conduct with your peers is not liked, your practice will suffer and so will your professional advancement.

How to best Deal with and Persuade the Court

Ultimately, you want to get the best result you can possibly get from the Court for your client. That is what barristers are in business for. Scratch most barristers and you will strike a fair sized ego and a strong, competitive streak. Most enjoy the cut and thrust of the adversarial environment and most want to win. A win is usually considered as getting the best result you can possibly get for your client in all the circumstances.

Some tips for achieving that in the family courts:-

(i) Come to our courts treating us like you do or would treat the Supreme and District Courts and the Federal Court. We are serious courts too. Come prepared with lists of documents you intend to rely upon. Find what we call the folio number that is written on the filed document from the solicitor or through the Court’s electronic portal, if you can, in the same way you do with the Supreme Court. Have a draft order prepared and ready to hand up. Have a written outline of argument prepared and ready to hand up.

(ii) Completely know your brief. All of that detail I spoke of before about the facts of your case, know it backwards so that you can immediately answer any question about it that is asked by the Judge. Only this week I had a specialist family law barrister before me on an interim application who, quite clearly, had not read his client’s 6 page affidavit that I had just read. That was obvious because the answer he gave me as to a matter of fact I asked about was 180 degrees away from what his client had said. Do not make that mistake and, if you do not know the answer to a judge’s question, have the courage to say so when asked. That will be appreciated more than an attempt to fudge an answer.

(iii) When you are asked a question by the judge make sure you answer it. Just as you expect that to happen when you are cross-examining a witness, it is hardly unreasonable for a judge to expect barristers to answer their questions quickly, directly and honestly. If you do not do that, you let yourself, your client and your profession down badly.

(iv) When you are asked by the judge to give an outline of the matters in dispute and for determination, make sure it is neutral. That is not the time for adversarial advocacy. You will get your chance for that, do not fear. Judges just often like to start a matter, particularly in busy duty lists, with a brief, neutral overview of the matter before having to read the material relied on by both sides. If you do not give neutral outlines, you will find yourself not being the one who is asked to provide it in the future.

(v) Do not misquote the evidence. This practice disturbs your opponents and the Court. If you do that, you run the serious risk of the Court losing trust in you. You give the best service to your clients and your briefing solicitors in the family law jurisdiction if the courts trust you, that is, when you say something to the Court, the Court can safely work on the basis that it is correct. Believe me, as I said earlier, if you develop the contrary reputation, it will stick with you a long time.

(vi) Only take objections that really matter and, in parenting proceedings, be conscious of the provisions of Part VII Division 12A of the FLA that exclude the operation of many of the provisions of the Commonwealth Evidence Act. The Court’s time is precious. We are under enormous time pressures. Your clients are paying a lot of money, by any standard, for you and their solicitor to be at Court. Do not waste time and money on objections to evidence that are not material to the issues in dispute and the likely outcome.

(vii) Always have a case theory and stick to it as best you can. That should help you have your cross-examination well prepared and properly focused on the material matters. Refine your oral submissions so that they are acutely focused on the real matters in issue. You will rarely get an enormous length of time for oral submissions, either at the end of a trial or after a duty list hearing. Therefore, they need to be brief, clear and well targeted. You must be able to depart from your script to meet the interest and the questions of the judge when delivering them.

(viii) Respond appropriately to the judicial cues. Some are subtly given, some less subtly, but be aware of them and ready to respond appropriately.

(ix) Know your judge.

How do you deal with litigants in person?

If you start appearing regularly in the family courts, you will come up against litigants who do not have legal representation. Acting against self-represented litigants requires particular care and consideration.

Some suggestions are:-

(i) Know and understand the decision of the Full Court of the Family Court in Re F:Litigants in Person Guidelines (2001) FLC 93-072. Familiarity with the NSW Bar Association’s Guidelines published in 2001 is also recommended. They can be easily found through that Association’s internet website.

(ii) Know the litigant in person is likely to be suffering from stress, frustration, desperation, heightened emotions, feeling intimidated and frightened, disadvantaged, angry, fearful, anxious and bitter. That is clearly a dangerous cocktail of emotions which, if confronted by a lawyer experiencing any similar emotions, can easily lead to serious confrontation and complaint.

(iii) Barristers and solicitors must bring all of their inter-personal skills of patience, adaptability, courtesy, diplomacy and understanding to the fore. If that is not possible, then it might be more prudent not to attempt to have personal interaction with the self-represented litigant at all, save for in the form of written communication, or only on the record in the courtroom. Less confrontation and more conciliation will assist in making any interaction sustainable. Keep inflammatory, threatening, and posturing language out of any discussions. It is usually a good idea to have a second person, such as a solicitor or a clerk, present when any direct, oral communication with a self-represented litigant is taking place and also to remember that agreements are never finalised until all terms are actually agreed upon and that settlements are certainly not binding until orders are made or a BFA that complies in all respects with the FLA’s requirements is executed. Expect that anything you say to a litigant in person, even things that person has perceived you to have said, will be put to the judge by an unhappy self-represented litigant who seeks to gain advantage by it.

(iv) Once in the courtroom, it is best to remember that the judge has obligations towards the self-represented litigant and will be doing his or her best to ensure fairness and neutrality are maintained. It is not appropriate to somehow attempt to enlist the judge’s support in a common struggle of lawyers against the self-represented litigant. It is best to avoid doing or saying anything, including the use of jargon, that could give the self-represented litigant the idea that there is some form of familiarity between you and the judge.

(v) Knowing that the judge has obligations towards the self-represented litigant, the represented litigant should be informed of those as clearly and as early as possible. Clients should be informed and prepared for the manner in which proceedings are to be conducted so as to minimize any feelings of resentment and dissatisfaction.

(vi) Never forget the obligations of procedural fairness that must be applied. Prudently inform the self-represented litigant of anticipated applications, objections, and submissions you intend to make in as timely a fashion as possible to avoid claims of ambush and unwelcome adjournment applications. Provide copies of written submissions and authorities you are referring to, be they reported or unreported, as early as possible.

(vii) Remember that there is statistically less chance of reaching a pre-trial settlement with a litigant in person. Be sensible about positions you adopt in respect of orders that are sought for your client. Do not make unobtainable, foolish ambit claims. They will polarize the self-represented litigant and entrench him or her in her own converse position. Just know well the costs provisions of s.117 of the FLA when in this position.

(viii) A good capacity for cost-benefit analysis and the ability to thoroughly explain the outcome of that analysis to your own client is very important.

(ix) Do not be cowed by the self-represented litigant. Vigilance as the advocate for your client is and must be maintained so that your client is not disadvantaged. Remember, particularly in the family law jurisdiction, a client should be protected from unwelcome and inappropriate harassment and intimidation by a former partner who is self-represented, especially under cross-examination in the witness box.

Ultimately, the value of advice from other professional colleagues on matters where you have concerns or doubts about a position can never be overestimated. After all, it is through the dissemination of good ideas that best practice ideals are set and met. Never cease to seek out such advice. The Bar has ethics counsellors in place. Use them. Use your more senior chamber colleagues. Use your peer group.

Come and see us in the Family Court and the Federal Magistrates Court. If you are well prepared, courageous and cheery of disposition you will find it a welcoming place.

Justice Colin Forrest