Australia: Ethical obligations of family lawyers

Last Updated: 8 February 2016
Article by Simon Creek

All Australian lawyers have ethical duties and obligations. These ethical duties and obligations are created by law. Family lawyers in particular have ethical obligations to:

  1. the court;
  2. act in the best interests of the child;
  3. act in the best interests of the client;
  4. self-represented litigants;
  5. other family lawyers; and
  6. avoid conflicts of interest.

Duty to the Court

The duty to the Court, and the administration of justice, is a lawyer's most important duty; r 5 of the Legal Profession Conduct Rules 2010 (WA). That is, lawyers are first and foremost officers of the Court.

Lawyers must not mislead or deceive the Court. That is, lawyers must not withhold relevant information from the Court. Equally, lawyers should not exaggerate or sensationalise evidence to prove their client's case.

Family lawyers must also comply with Court rules, namely the Family Law Rules 2004. This includes complying with pre-action procedures such as mediation (r 1.05), providing ongoing disclosure to the other party (r 13.01) and meeting costs disclosure requirements (r 19.2).

Family lawyers must ensure that any undertakings (promises) to the Court are honoured completely, regardless of whether that undertaking is made by the lawyer or the client.

Duty to act in the Best Interests of the Child

The child's best interests are the paramount consideration in all parenting matters; section 60CA of the Family Law Act 1975 (Cth). This is not an ethical rule, however in practice it does impact a lawyer's conduct.

The best interest principle is such that a lawyer's duty to act in the best interests of the child is higher than the lawyer's duty to act in the interests of their client.

In practice, this means that if a client suggests a course of action that is not in the child's best interests, then the lawyer must advise against doing so. For example, if a client:

  1. discusses family law proceedings with the child;
  2. denigrates (speaks badly about) the other parent in front of the child; or
  3. attempts to relocate the child without the other parent's knowledge or consent;

then the lawyer must intervene and discourage such behaviour.

The duty to act in the best interests of the child is most obvious when there are allegations of abuse (whether physical, verbal, emotional, or sexual) or family violence. In those circumstances, a lawyer's duty is to protect the child at all times. It is not a question of whether the lawyer believes the allegations. Of course, the lawyer should get prompt and detailed instructions from the client and any other evidence that will assist in the investigation. In cases of abuse or family violence, the lawyer should also recommend that the Court appoint an Independent Children's Lawyer.

Duty to Act in the Best Interests of the Client

A family lawyer's duty to their client is not paramount – it comes after their duty to the court and the duty to act in the best interests of the children.

In the conduct of family law proceedings generally, lawyers must:

  1. be well prepared for all court events;
  2. communicate closely with clients;
  3. maintain confidentiality, even if a concerned relative or friend of the client contacts the lawyer to obtain information;
  4. carefully and comprehensively draft documents;
  5. not prepare or witness documents that contain information that the lawyer knows to be incorrect;
  6. convey all offers of settlement to the client, with proper discussion and advice;
  7. discourage settlement terms that are unnecessary, unfair, or create opportunity for ongoing disputes between the parties; and
  8. keep the client informed of the costs to date and the estimated future costs.

Duties to Self-represented Parties

Self-represented parties are common in family law. There is a significant amount of support available to self-represented parties. This includes judicial officers themselves, who are mindful of assisting self-represented parties with Court procedures and legalese.

However, lawyers also have particular duties when dealing with self-represented parties, such as:

  1. to be courteous and prompt in responding to a self-represented party (whether by telephone or in writing);
  2. to act fairly (but not to the client's disadvantage);
  3. to provide a self-represented party with legal and procedural information (but not advice); and
  4. to make any offers of settlement in writing and require a self-represented party to respond in writing.

Duties to other Lawyers

Lawyers must be professional and courteous to other lawyers; r 6(1)(b) of the Legal Profession Conduct Rules 2010 (WA). That is, while lawyers can be assertive about the substance of a legal matter, they must not let personalities distract from the dispute.

In practice, family lawyers are likely to deal with each other often. For that reason, it is beneficial to maintain working relationships with other lawyers.

Conflict of Interest

The conflict of interest rule is common to all jurisdictions. A lawyer acting for a party in a case must not act in the case for any other party who has a conflicting interest; r 8.03 of the Family Law Rules 2004. In general, if there is any doubt as to whether the lawyer has a conflict of interest, then that lawyer should cease to act.

What does this mean for your case?

All of the above simply sets the parameters for the ethical conduct of family law matters, and is helpful information for clients to have at hand and understand. At HHG Legal Group your case will be fully and comprehensively advanced and defended without any compromise to ethical standards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Simon Creek
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