Amanda has a Family Law matter which involves her two children aged 2 and 4. Amanda’s former husband Phil (who is also the father of the children) has not been involved in the childrens’ lives for 2 years.
Unfortunately Phil developed a drug addiction to methamphetamine around the time Amanda was pregnant with their second child. Phil became wholly depended on the drug and consequently quit his respectable job and became involved with well known criminals in their local area.
Recently Phil has issued court proceedings in the Federal Circuit Court of Australia in an attempt to try and gain time with the children. Amanda is vehemently opposed to Phil’s court application as she has heard that Phil is still addicted to methamphetamine and still has associations with criminals.
Amanda wants to fight as hard as she can against Phil’s court application. She wants to retain the best barrister she can find.
Is it necessary for Amanda to hire a barrister in this situation?
A common source of confusion for clients is the interchanging roles between a barrister and a solicitor throughout the court process. Clients are often unsure as to whether their case requires the services of a barrister, or at what point in the proceedings a barrister is needed.
It is important to understand that the solicitor who the client has instructed will guide the client and advise as to whether a barrister is required for the individual case. Commonly barristers are retained for the following reasons:
- The case deals with a particularly complex area of the law
- The case is heavily litigated (that is, legally contested or fought)
- The case involves a trial
Barristers provide specialist advice and representation for particular areas of the law, including Family Law.
Retaining a barrister can be a subjective choice of the client. If the client specifically wants a barrister to appear for them in court rather than their solicitor, then the solicitor will be obliged to retain a barrister on behalf of the client.
The advantage of retaining a barrister is not only their advanced knowledge in a particular area of the law, but also the fact that they are intimately involved in the court process on a day-to-day basis. Interestingly however, there are also many solicitors who are specialists in their field and attend many court hearings also.
"It is of paramount importance that costs are taken into account when a client is considering whether or not a barrister is necessary for their case."
Of course retaining a barrister does come at an additional cost to the fees and charges of the solicitor. It is therefore of paramount importance that costs are taken into account when a client is considering whether or not a barrister is necessary for their case.
In Amanda’s case she will need to discuss her desire to retain a barrister with her solicitor first. Once she has received advice from her solicitor, she can then make an educated determination with respect to whether it is worth her while also having a barrister.