If There’s No Pot, There’s No Point

Why Chasing Family Law White Rabbits Down Holes Can Land your Client in “Why Did I Do It” Land.

If you are reading this and thought it was about marijuana or other mind altering substances, sorry to disappoint: this is about whether a client should be advised by their Family lawyer to issue s106B proceedings to set aside transactions which have occurred and the effect has been to defeat or may defeat orders which the Court intends to make in a given case (existing or anticipated so the section of the Family Law Act reads).

Lawyers often get excited chasing rabbits down burrows. An excited lawyer, in my opinion, can be a dangerous thing. Chasing rabbits can be invigorating for the lawyer and their budget but exhausting for the client – emotionally and financially. Before following white rabbits, a client needs to assure if there is some tangible outcome not the mere promise of either gaining on the rabbit or capturing the rabbit – only to find the rabbit lost condition in the chase. Put another way, it might be easier and therefore less expensive to get into your car and drive to the supermarket and buy a rabbit that has already been caught and neatly prepared for you. Without mixing my metaphors, a bird in the hand, as they say, is worth two in the bush.

To make that assessment, at Caroline Counsel Family Lawyers, we make assessments and give our client advice based on what we know about which rabbits to chase, which ones to buy and which ones to let go of. It may be that all information is not readily apparent to the lawyer and they must use the tools available to them to elicit that which they need to know – discovery, subpoenas, specific questions, evidence, third party discovery (not always readily accessible), third party joinder (extreme caution advised), cross examination (noting as rare as hens teeth in interim hearings), past valuations (but beware shifting markets) and of course ultimately – invoking and running a s106B application in a case. We can provide you with an assessment about the efficacy of what tools to employ and (as much as we are able to, given the unknowns), provide a cost benefit analysis.

Valuations may also be necessary to work out if the pot is worth the effort and by effort, I mean legal expense. In a moving market or an economy which is trending into recession or worse, it may mean working out if an asset (or entity which owns/controls assets) still has value. Your client may be basing their instructions on old information. A once successful business or lucrative asset which has been transferred or disposed of, may not have retained the value of the glory days of your client’s union.

Before Caroline Counsel Family Lawyers advises their clients to embark on costly litigation we ensure all financially viable stones are turned. We caution our clients about proceeding on a false premise or an expert’s best guess. An expert’s opinion is only as good as their information. If they are unable to access the current accounts of a business (presumably because it is no longer owned by the other party and therefore the rules of discovery do not apply) they have to base their supposition on their best guess. Best guesses may provide cold comfort. It is not enough to suppose it must be worth something if a spouse has gone to all that trouble to divest themselves of their ownership.

In summary clients who extrapolate value based on their glory day memories must temper their vision of fluffy white rabbits within easy grasp. A good family lawyer will exercise caution, particularly given the current economic forces and the impact on the bottom line and use all information gathering tools available to them to attempt to wrest victory from the rabbit who is trying to outfox their client and the Court.

Caroline Counsel
Accredited Family Law Specialist
THANKS to A Finemore Senior Associate of Caroline Counsel Family Lawyers for the idea and the quotation.

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