VIC Vexatious and litigious ex

[Dpj]

Im not after Gorman v Gorman. Im trying to avoid costs plus have her get help. Firstly, my lawyer thinks id get more than what im offering. Im willing to agree to what she wants but we both get a psych tested. I give my ex 3x psychs to choose from, she does the same. I choose BPD specialists. She denies any issue so this gives her exactly what she wants. But at a lower cost.

 

[Mum9son]

Mostly. There is an exception for second opinions. The rule against contact is for the protection of the 'opposing party', and obtaining a second opinion doesn't breach that. At first glance that maybe appears to be valid here. However, and while I can't speak to everyone else's reasons here, 'we' lawyers are reluctant to jump in when someone states they are represented for any combination of the following:

1. Any information we give is going to necessarily be measured against what the person's lawyer is saying. That lawyer has (at least in principle) the benefit of full instructions, and review of the relevant material. We get a forum post. Clients are not generally - nor are they expected to be - able to provide all pertinent information in their initial statements. It's just not a good set up.

2. The second opinion 'exception' itself. You'll notice the lawyers around here all have disclaimers in their signatures that their statements are not to be construed as legal opinions. That's not just 'being tricky', there's precedent to state that once an opinion is given, considered or not, and paid or not, a duty of care arises. That's lawyer speak for 'we're on the hook if something goes wrong'. Couple that with point one and that's a risk no lawyer should be willing to take. Accordingly, since we're emphatically stating we're not giving an opinion it stands to reason the 'second opinion' exception isn't made out. Lawyers who unnecessarily expose themselves to professional negligence claims don't tend to last too long, or get hired by law firms.

3. Professional courtesy. If someone has retained paid legal counsel, that's who they should be contacting with their questions - not us. I accept that's a slightly different case if there's a communication problem with said lawyer. Lawyer/client relationships are founded on trust, and if the client doesn't trust the lawyer to go to them with their questions then there is no relationship.

I have a legal aid grant - which is considered 'pro bono' ie more of a 'pretence of legal representation' - I expected: 1) transparecy 2) advice and information 3)a) defence and b) putting case forward - I have not been able to sleep for some months, since lawyer put in her affidavit - I am in a small town, and feel any lawyer who will take legal aid here may also be slack - would I be better asking a criminal lawyer I know, to take the case, as I believe it would be better having them like Mckenzie friend and messanger, rather than self-representing. I do not see what the huge mysetery/tricks are for 'family law' that we could not handle - they are not keen, but may be talked around: I can trust them as a person. It is a complex case, my son has extra needs, the OP has a disability pension for brain injury (which is being ignored) and abuse I did not report, and OP triggers son. OP claims I was verbally abusive and hoard, and treat son like 'client' as I am a psychologist. We lived in OPs granny flat for 7 years until we got away 18mths ago - OP never cared for son, took to therapy, paid for anything. He had 10 supervised visits at contact centre (monthly due to triggering constant sexualised stims in son at first visit) but no face to face for last 6 mths due to covid -(3 video calls a week) - court hearing in November : I need to prepare.

 

[Tim W]

I have a legal aid grant - which is considered 'pro bono' ie more of a 'pretence of legal representation'

Considered by whom?
And pro bono is not a pretence of any kind.

- I expected: 1) transparecy 2) advice and information 3)a) defence and b) putting case forward - I have not been able to sleep for some months, since lawyer put in her affidavit - I am in a small town, and feel any lawyer who will take legal aid here may also be slack

You are not required to accept Legal Aid funding.
Legal Aid does not cover the costs of most matters.
People who do Legal Aid work do so because there is a big-picture access to justice question in play
for people who can't afford to "go private".

...- would I be better asking a criminal lawyer I know, to take the case, as I believe it would be better having them like Mckenzie friend and messanger, rather than self-representing.

You can ask, but your criminal lawyer friend, as a matter of ethics, may not take the work on.
That could be because it's outside their field, or
because they know you personally, and that is/ could be a conflict of interest or an ethical problem; or
because they already have so much work on that they can't do your matter properly (yes, even these days).

I do not see what the huge mysetery/tricks are for 'family law' that we could not handle

It's not a question of mystery or tricks.
If you think you can DIY, then you are free to do so.
I don't see what the "mystery/tricks' is for open heart surgery,
but I do know that there are people who will
do a better job at it for me, than I could on myself.
That's your free consumer choice to make.

 

[GlassHalfFull]

DPJ, just one thing I wanted to add to the discussion though... you say you want to self-represent for your IVO. You can't.

At least not, when it goes to a contested hearing and you'd be unlikely to have any success prior to that point. You can't cross examine the applicant without a lawyer. The duty lawyers won't do it on your behalf. They only handle mentions and giving you basic legal advice to help you navigate the system, but they won't prepare for and defend you.

That was my dilemma too. I pushed my IVO all the way through two mentions, a directions hearing and then to a contested hearing, but simply couldn't justify the cost of briefing a lawyer to represent me when the deck is stacked so badly against you to begin with. I will never know whether I would have stood a chance if I had simply turned up, hoped for the best and explained in my own words why the IVO was a combination of exaggerated, twisted and outright lies. But I'm sure without any opportunity to catch my ex in lies through cross examination, it would have simply ended up being two opposing narratives that the magistrate would have to decide between, in circumstances where there were accusations that things certain happened behind closed doors and no easy way for me to prove my version of events, or that in fact my ex was violent towards me if anything.

I strongly suspect the magistrate would take the conservative approach and side with my ex because she had the backing of a police prosecutor and there's a silly myth perpetuated that IVOs are civil matters with no real consequences, so "why not just accept it and move on with your life?". It's just not true. Turns out it may affect me getting a Working With Children check and it would almost certainly affect me applying for certain jobs.

 

[Atticus]

You can't cross examine the applicant without a lawyer.

Unless the protected person agrees (yep.. unlikely)

but simply couldn't justify the cost of briefing a lawyer to represent me

Relevant to Victoria ..... The act actually says the court MUST provide a legal aid lawyer if you don't have/want a lawyer to cross examine >>>> FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 71 Representation of respondent

 

[GlassHalfFull]

Unless the protected person agrees (yep.. unlikely)

Relevant to Victoria ..... The act actually says the court MUST provide a legal aid lawyer if you don't have/want a lawyer to cross examine >>>> FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 71 Representation of respondent

That's interesting... do you know how that would work in practice? Because when I turned up on the day, I was told they couldn't and wouldn't provide one (at least, not the usual duty lawyers who handle many many cases each day) for a contested hearing, even just to speak to prior to the hearing to get advice (whereas in previous mentions and directions hearings they did). Wouldn't touch me with a 10 foot pole so I was left on my own to negotiate with the police prosecutor. Obviously asking for representation for a contested hearing at the last minute is tricky, but how would the court ensure I had a legal aid lawyer? Would they just postpone the hearing if I turned up and wasn't prepared?

 

[Rod]

Because when I turned up on the day, I was told they couldn't and wouldn't provide one

What they do voluntarily is different to what they do when ordered by a court. Preparing for a defended hearing is a lot more work (or at least should be), than attending a mention or directions hearing.

 

[Atticus]

Obviously asking for representation for a contested hearing at the last minute is tricky, but how would the court ensure I had a legal aid lawyer? Would they just postpone the hearing if I turned up and wasn't prepared?

This is the way the act reads >>>> (1) If the respondent does not obtain legal representation for the cross-examination of a protected witness after being given a reasonable opportunity to do so, the court must order Victoria Legal Aid to offer the respondent legal representation for that purpose.

Now if that were to happen, it's obviously going to take a while for a lawyer to be briefed, so an adjournment of a reasonable length would have to be granted I should think .... If they didn't do this, I expect there would be solid grounds on appeal that the magistrate made an error at law & as a result you were denied procedural fairness, ie, among other things the opportunity to have your accuser questioned

 

[GlassHalfFull]

Responding to both Rod and Atticus here...

It seems that there is inherent procedural unfairness though, because I was certainly pressured into feeling like unless I hired a private lawyer and spent a lot of money, I would be left with no option but to forego cross examination of my ex. It sounds like that is actively built into 'the system'. At no point did the magistrate advise me that I would be entitled to a legal aid lawyer to cross examine if I didn't have my own. The magistrate specifically told me (if I recall correctly) that in fact I would simply not be able to cross examine my ex unless I secured a lawyer myself - she asked me if I understood this, and I replied yes.

Prior to my contested hearing, I tried asking a community legal centre and I tried Victoria Legal Aid, neither would take me on, and just gave me a list of lawyers who 'might' do pro bono work. I just gave up at that point and accepted my fate.

It certainly feels like I got shafted by the magistrate if she misled me.

 

[Atticus]

It's possible that the magistrate wasn't aware (no excuse) May have been interesting if you quoted that section of the act... As for legal aid knocking you back, as Rod pointed out, different if they get ordered by court to represent you. Still may have been up for some contributory costs though..