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Invisible Needs – Advising Vulnerable Clients
Professional Skills| What area(s) of law does this episode consider? | The episode doesn’t focus on a particular area of law but rather how to advise vulnerable clients generally. Josh and Ali discuss vulnerable clients in the context of migration law, in which they practice. In the same vein, Leona Bennett gives us her perspective as a family law specialist, who often sees vulnerabilities in clients experiencing financial abuse. |
| Why is this topic relevant? | There are many types of vulnerable clients who need legal advice. In the 2018 – 2019 financial year, more than 8.8 million temporary visas were granted in Australia, with 179,085 permanent places delivered. Many immigrants seeking asylum are vulnerable, both in regard to their past experiences which they are forced to relive during the process of seeking refuge, but also because other of issues such as language barriers and capacity. From a family law perspective, in 2018-2019, 52% of Family Court applications related to financial matters only and some of those matters involve financial abuse. Behind these numbers and statistics however, are faces and families, many of whom are burdened with their own vulnerabilities. For example, clients experiencing family violence or fleeing persecution in their home countries. And now, to add to what is usually a challenging and laborious process in either seeking asylum or resolving a family law property settlement, a global pandemic which heightens the emotional and financial pressure on individuals and families during this period of isolation. |
| Scenarios discussed | Ali and Josh give us examples of clients they have advised, and talk about the clients’ experiences, as well as their personal experiences with the client. For example:
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| What are the practical takeaways? | Josh and Ali’s tips
Leona’s tips
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| David Turner:
1:00
2:00 | Hello and welcome to Hearsay a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. In this episode I speak to three lawyers to share their experiences in advising clients of different vulnerabilities. I’ll begin by speaking with Ali Mojtahedi and Joshua Strutt from the Immigration and Rights Centre, or IARC, who share their experiences in advising people seeking asylum, dealing with language barriers, health issues and more. And then I’ll be speaking to Leona Bennett, an accredited lawyer in family law at Southern Waters Legal who shares her experiences in advising victims of financial abuse. This is an informative episode that shares practical tips on how to engage with and assist vulnerable clients. We hope you enjoy it. Even in a country like Australia, ranked 11th on the Rule of Law Index according to the World Justice Project, the law can be impenetrable, confusing and at times even mystical or arcane. It can be hard to understand the law and hard for lawyers to explain it even to clients with a wealth of business experience, knowledge of Australian society and culture and privilege. The task of helping a client negotiate Australia’s legal systems becomes even more difficult however with vulnerable clients who speak no or little English, who’ve experienced past trauma, perhaps at the hands of another legal system, or who are currently experiencing family violence, or living with a disability. Today I’m speaking with Ali Mojtahedi and Joshua Strutt from the Immigration Advice and Rights Centre (IARC) about their experiences with vulnerable clients and how to demystify the law for those vulnerable clients. Ali and Josh thanks for joining us on Hearsay. |
| Ali Mojtahedi: | Thanks for having us |
| Joshua Strutt: | Thanks David. |
| DT: | Before we start in earnest tell us a bit about IARC – what sort of work do you do here, Ali? |
| AM: | We provide immigration advice and assistance to vulnerable migrants. The majority of our work is in relation to women escaping family violence not exclusively, but 90% of the time they’re escaping family violence. |
| DT: 3:00
| Ali you said a lot of your clients, that the main body of your clients are vulnerable migrants and that a lot of the work that you’re doing is in relation to applications for temporary protection visas. TIP: Section 36 of the Migration Act 1958 (Cth) sets out protection obligations owed to refugees in Australia. If a person is found to be owed those protections and meets all other visa requirements including health, character, identity and security checks and that person arrived in Australia without a visa they may be eligible for a temporary protection visa. Typically, this visa lasts for three years and requires renewal before expiry. It usually restricts travel requiring compassionate or compelling grounds before permission to travel overseas is granted by the Department of Home Affairs. Temporary protection visa holders are typically permitted to work and access Medicare as well as Centrelink benefits. |
| AM: | We also have a fair few clients who are stateless. |
| DT: | Josh maybe you could talk a bit more about the concept of statelessness? |
| JS: 4:00
5:00
6:00 | The clients I probably see most who are stateless are clients who are often from Myanmar or from Iran. TIP: Statelessness is generally defined as the status of being without citizenship or nationality of any state. Some authors such as Alice Edwards and Laura Van Waas state that it can obstruct the enjoyment of a wide range of rights as well as contributing to human insecurity, forced displacement or conflict. The 1954 Convention Relating to the Status of Stateless Persons is designed to ensure that stateless people enjoy a minimum set of human rights. It establishes the legal definition of a stateless person as someone who is not recognised as a national by any state under the operation of its laws. The 1954 convention also establishes minimum standards of treatment for stateless people in respect of a number of rights including employment, education and housing. Australia is a signatory to the 1954 convention and another convention the 1961 convention that aims to reduce statelessness worldwide. There’s always been issues I think in terms of ethnic tensions and things along those lines in Myanmar, but the Rohingyas in Myanmar who come to Australia are often, if not always, stateless. There are often, their citizenship laws are set out in such a way which renders them stateless or unable to obtain citizenship while in Myanmar. TIP: The 1982 Citizenship Law governs citizenship in Myanmar. The citizenship law states that the acquisition of full citizenship is based on the principle of race or ethnicity. An individual must belong to one of 135 officially recognised national ethnic groups to obtain full citizenship but individuals who do not belong to one of those groups are at risk of statelessness in Myanmar. Children of unrecognised ethnicities born in Myanmar are also at risk of statelessness as the citizenship law stipulates that children can only acquire Myanmar nationality if both of their parents are citizens and are one of the recognised national ethnic groups. There are currently no protection measures in place to protect children from being born stateless in Myanmar. The other group of people that we see as well at IARC and through my previous job at RACS as a solicitor were a lot of people who were stateless Faili Kurds who were living in Iran and again, by operation of access to potential legal mechanisms that might lead to citizenship, citizenship was just never availed to them. The ability to apply was very difficult. Or impossible given their situation. So, they’re sort of the two largest cohorts I’ve seen in relation to stateless clients. |
| DT: 7:00
| Ali as I understand it one of the prerequisites for obtaining a TPV is that protection from the threat you’re fleeing isn’t available to you in your home country. That the country from which you’re coming can’t adequately protect you from that threat. Does that mean that there’s often an aspect of, an absence of intervention of the legal system in that country or perhaps even persecution by officers of the legal system or the justice system in that country? |
| AM:
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| Yeah, I think it’s important to start off by identifying that no country or government in the world can guarantee protection. I mean, one wouldn’t say that the judicial system or the protections available in Australia through the state are inadequate, in a country in Australia, but we still see for example, we see in the domestic violence space at least one murder a week every year for as long as we look back. The test in terms of state protection for the purpose of applying for a protection visa you really look at whether or not the state authority has the willingness and ability to offer that protection. So, in some countries you might actually have a system that is so inadequate that regardless of the intentions of the authorities the protection needed is actually not there. In other countries you actually, you know you might have an adequate system in place, but there’s a lack of willingness to intervene, a common example might be where police authorities in particular countries might be reluctant to intervene in family related matters. A common example might be in Pakistan where police might turn a blind eye to domestic violence or matters involving honour killings, and would only intervene as a following an incident, as opposed to intervening to prevent an incident. I think another aspect to it as well is that in many cases the people fleeing are actually fleeing harm at the hands of the state authorities. And so, it is unreasonable to expect an individual to try to seek protection from those who are seeking to harm them. |
| DT:
| And in that case where the state authorities are a client’s persecutor, when you first meet that client how do you assure them as you, an officer of Australia’s legal system, can be trusted? And how do you assure them that the result that they’re going to get by pursuing an Australian legal process is going to be fair or is even worth pursuing? Or that it won’t even put them in some sort of danger of further persecution? |
| AM: 10:00
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| In addition to all the issues you’ve raised, the great number of our clients also lack literacy, but they do come from countries where there is a great lack of trust with authority. I don’t know whether this is an adequate approach, but it’s the approach that I’ve used, which involves an introduction from me by initially identifying who I am, my role as a lawyer, identifying my independence from the government. I do always indicate that the way, I try, there’s also language barriers, so a lot of the way we have to articulate these concepts you have to try and do it in a way that is understandable. That the client can understand it. So, I usually start off by identifying that in the relationship that we are going to have, I work for my client that it’s my job to consider their best interests, take their instructions and act on their instructions. I identify that I don’t work for government, I don’t work for the Department of Immigration, I identify that I play no role in actually giving visas, having an influence, any internal influence over that and I spend a bit of time trying to explain concepts of confidentiality, legal professional privilege and that is really, and whether or not that actually gets across, I must say sometimes I doubt that it does completely get across because I think once a person has experienced so much… |
| DT: | When the only experience that someone has had with a legal system is not a vindicating experience but is a persecutory one, it can be very difficult to shift that mindset. And think well, in this country I can trust the process. |
| AM: 12:00
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| Yeah, not only trust the process but to trust the person who is helping me, because community legal centres are for the most part, well community legal centres receive government funding. TIP: Collectively NSW community legal centres receive about $12 million per year from the Commonwealth government and around $14 million from the NSW government. Funding is channelled through a National Partnership Agreement which sets out the minimum contributions from the Commonwealth, States and Territories over the life of the agreement. You know, legal aid receives government funding. And so, too, and I think there is a legitimate question in the mind of clients as to if your funder is the person who ultimately makes the decision, or the government and I have a general distrust in governments why should I trust you? And I find that where there is an element of distrust to begin with, it does take some time before there is some level of trust and engagement. That’s my personal experience. And if anything I find that that level of trust only starts to develop at a hearing or after a hearing, once the client actually sees that you’re advocating on their behalf and you’re putting, you’re advancing all arguments that could be made on their behalf and you’re doing it without fear or favour, well without fear. With favour! |
| DT:
14:00 | That’s amazing, that it’s not really until that very late stage in the process that they can see that you are kind of an adversarial advocate as you say, fearlessly advancing their case, and it sounds like the first step in developing that level of trust is to not assume knowledge about any of the features of our legal system that any clients who have a greater experience with Australian society and culture might assume. You mentioned earlier the challenges of advising a client who doesn’t speak any or speaks little English, what are some of the pitfalls that can arise when giving legal advice through an interpreter? |
| AM:
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| The biggest issue that I suspect we have is we don’t know, well firstly we don’t know what the interpreter is actually saying. TIP: New South Wales is one of the most culturally diverse places in the world with more than 200 languages and dialects spoken in this state alone. Over 25% of its population are overseas born and more than 22% speak a language other than English at home. Knowing a foreign language does not qualify a person to act as an interpreter. In Australia, interpreters are accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) they are required as a condition of their ongoing accreditation to act in accordance with NAATI’s code of ethics which includes competence, confidentiality, impartiality and avoiding conflicts of interest as well as remaining faithful to the meaning of source messages at all times. Wherever possible the need for an interpreter should be determined prior to an appointment with a client. Engaging an interpreter is recommended by the national accreditation authority if its requested by the client, if the client can’t comprehend or respond to basic questions in English, if the client is difficult to comprehend in English or can only respond in a limited way in English, if the client relies on family or friends to communicate, if the client prefers to speak their own language, or if the client speaks English as a second language and is in a stressful, complex or unfamiliar situation, we note that a legal context is frequently stressful, complex or unfamiliar for many clients. A useful question to ask a client to determine their level of English language proficiency is to ask, ‘Why are you here today?’. If the client cannot respond to the question fluently or if the response is difficult to understand, an interpreter is recommended. And what I’ve learnt over the years is that a lot of the words that we use as part of our advice actually don’t have an exact translation. And so often we will say, we will say something, and it becomes clear that the interpreter is not interpreting it word for word but that they’re trying to explain a concept. So, in order for the advice to be accurate you really have to rely on the interpreter’s ability to understand a concept. And to be able to explain that concept. And in fairness to interpreters that’s not part of their training. Their training is to translate it’s not to understand legal concepts. That’s one aspect. Another is I think I mentioned before the difficulty for some clients to talk about traumatic experiences, that also extends to sharing those experiences with somebody, the interpreter, who is also a member of their community. And so, we have, I have also had clients in the past who have been reluctant to disclose issues because their community is so small that it would bring them great shame to actually have those issues raised. So, regardless of their inability to actually communicate, some clients do insist in talking about certain issues without the interpreter’s presence. |
| DT:
18:00 | I suppose when you’re using an interpreter you expect what is being interpreted is the language and not necessarily the context or the ultimate content, I suppose as lawyers one of the things we view as our job is to demystify the law and create meaning out of that more technical language in a way that our clients will understand. When you suspect that some of that context isn’t getting through and that you’re maybe getting an abridged version of what the client is saying, what are some of the tools you use to get the rest of that information out? |
| JS:
19:00
| Some of the tools I’ve personally used is if the question is quite open and the answer appears to be quite long and I don’t seem to be getting all of it, I might break down the question into smaller questions, so yes or no answers, or tell me little bit more about this aspect of what you just said, or tell me a little bit more about that aspect of what you just said. I guess as well what I also do is sometimes the information or the advice I want to give a client is based a lot on context so and it’s not, it’s a good idea for me not to just delve into what are the requirements of a protection visa or what are the requirements of this visa, or what are the requirements of a partner visa, rather ask them questions about themselves, which hopefully aren’t too difficult to interpret to the client in order for me to then work out potentially what visa pathways are appropriate or what information they actually need to know in this appointment and what are the actual pertinent issues right now and that helps me then give the right, or hopefully the right information and also not use legal jargon, more give it a practical application, a practical sense of things. So, you’ve told me this, this means you might be eligible for this visa, this is what this visa means for you in your situation. Not just tell them about a visa which doesn’t really relate to their personal situation. |
| DT: 20:00 | Ali you mentioned earlier that a lot of the work you do here at IARC, perhaps as much as 90% of it relates to women fleeing family violence. I imagine that’s an entirely different dynamic in terms of trusting your role and trusting the process. What are some of the tools that you can use to reassure a client in that situation that it is safe to be speaking with you and that it’s not something that they’re going to be the subject of further violence for later? |
| AM:
21:00
22:00 | Yeah, that’s actually a really good question. The majority of our clients are women who are escaping family violence, I’d say close to 50% or so. I think there’s a number of measures that we take. As a starting point we do ensure that every client is given the opportunity to speak with a lawyer who is either male or female because many of our clients are survivors of family violence, and others you know have been subject to torture and sexual assaults and abuse overseas and in Australia and having to disclose those factors to a male solicitor would be either, you know, it’d be an additional trauma. So, I think giving clients the ability to choose whether or not, it’s not going to make disclosing it pleasant but being able to disclose it to a lawyer of a particular gender might at least reduce, and that I think is an important part of our practice. As well as offering clients the ability to choose the gender of an interpreter as well. But we also speak to them about, one of the biggest fears held by certainly temporary visa holders escaping violence is whether or not their partners have the ability to deport them. And so when we clarify the role that their partner or sponsor, the role that once they’ve left the relationship, once there’s been family violence that if they engage in the process that their partner no longer has any involvement in the sense that they can no longer determine whether or not they leave or stay, I think that adds a certain level of comfort. |
| DT:
| In terms of communicating with clients experiencing family violence, because I know that certainly a form of abuse is monitoring and controlling a partner’s movements or communications and not allowing them that privacy in terms of phone calls or letters, how do you communicate with your clients to ensure that communication remains confidential from an abusive partner? |
| AM:
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24:00 | Yeah, one of the things that we also ask clients is whenever we make appointments, we ask them whether or not any form of communication that they’ve provided to us, whether it’s email or a phone number is safe. And what we mean by that is if we call this number is it likely that you might be, your partner might be present when you answer and that might cause you trouble. Same with emails, do you think that it’s safe for us to send you an email – does your partner have access to your password? The other thing that I’m also mindful of is we have information sheets and we do from time to time print information sheets and give them to clients. But with family violence cases I find that it might not always be safe to actually print out an information sheet and give it to a client because if their partner sees that in their bag, in their backpack it might cause problems. But what we always, what I always say to clients is that there are information sheets that are available on our website, you can view them without having to print them, and we’ve just actually updated, we’re in the process of updating them, our family violence information sheet, is there, what we don’t have yet and we’re hoping to, is to have them translated into different languages. |
| DT: | It sounds like it requires you to think quite creatively and perhaps counter-intuitively about the way you deliver advice rather than in a traditional scenario. I think most lawyers would think well it’s just prudent to always give your advice in writing so that there’s a clear record of the advice that you’ve given, but there’s obviously a tremendous risk to giving advice in writing, particularly on paper in this sort of scenario. Does that also require you to think creatively about the confidentiality of communication, I might be completely off here, but for example, instead of calling a home phone number, calling a friend’s or neighbour’s home phone number? |
| AM:
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| Yeah, it does, it is not uncommon for us to make appointments and say we won’t call you – you call us. That’s the first thing, but it is also not uncommon, it is also common for us to set up appointments at a time when a client for example, is visiting their friend’s house or a refuge even. So, they might actually go into a community centre say to their partner look so I’m going to the shops I’m going to drop off our child at childcare and use that as an opportunity to speak to them. But we do often have to speak to clients using someone else’s mobile because what if the partner actually goes through their phone and says look who is this incoming call from? Another trouble, well another issue, is that because of the nature of our work our number is private so when we do call, they actually don’t know who’s calling. But having said that we’ve also had that we also have had times when the partners of clients have contacted us and said I’ve found out that my partner has been calling you, what is this all about? |
| DT: | And how do you deal with an enquiry like that? |
| AM: 26:00 | Well I think the only thing that we can appropriately say is that we can’t disclose to you, we can’t even disclose to you that they contacted us, whether they have, or they haven’t, and we’re not in a position to tell you. Not only what they called us about but that they called us because we have to take the safety of our clients very seriously. |
| DT:
| I imagine lawyers who are perhaps not experienced in this area might fall into the trap of saying well that’s my clients privileged information I can’t tell you what I’ve advised them, but that’s of course giving away that you’ve given them some advice which is a critical issue. |
| AM: 27:00 | And most people are cluey enough to understand that if somebody is seeking advice from us, it’s probably because they want advice about leaving their partner and that information alone would expose them to a risk of harm. |
| DT:
| Ali and Josh, we’ve spoken about a few different kinds of vulnerabilities that clients might be facing with past trauma, English language difficulties or family violence. Regrettably I suppose it’s rare for just one of those vulnerabilities to be present in a client’s life, what unique challenges do an intersection of vulnerabilities face for you when you advise the client who may be experiencing multiple or maybe all of these challenges? |
| JS:
28:00
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| I think the biggest challenge is appreciating all of those vulnerabilities and knowing or trying to understand at least the impact those vulnerabilities can have on someone that you’re trying to advise. People who are experiencing a number of those vulnerabilities might not be in a state or capable at that time to actually receive the advice you are giving, and that’s definitely an issue I’ve faced many times where someone will call you up again and we get it here quite a lot or we’ll get another email from a client saying what am I supposed to do with this form, or can you please explain to me again about this, or I’ve left my partner what do I do now, and it might be the advice we already gave them a week ago but at that time they weren’t, they just weren’t able to understand it for whatever reason and most of it comes down to what they are experiencing at that time and their ability to understand it. So, we have to be very understanding of our clients’ position that they are in. We have to be able to you know book them back in again, see them again, advise them again, maybe even review the advice we gave previously and work out if there’s another way we can deliver it so that they can understand it, or what is it that they’re not understanding about the advice last time, or what are they finding difficult about the advice last time and how can we make that process easier for them. |
| DT: | It sounds like you really need to be aware of particular context that a client is in or what their current experience is because I suppose if they have language difficulty or difficulty understanding the advice that you’re giving them if it might be easier to understand at a time when it’s more relevant, does that hit the mark? |
| JS:
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| Yes and I think we have processes set up that mean that a lawyer isn’t just going into an appointment cold, so it’s not like a person just shows up and we go what’s your problem today, or what issue do you need resolved, or what’s your legal issue. In order to get an appointment with us people need to contact us by telephone, or more preferably through an online referral form, and there is a series of questions they have to answer to submit that form. And part of it is you know what country you’re in, what visa do you hold, do you have a partner and even if they don’t know that they can still leave them blank or say don’t know, that’s fine the form will still go through, but at least it gives us a bit of guidance about their situation. And then there’s also the bottom question which is about you know what type advice you’re after and sometimes you get very descriptive you know everything in it and it allows you to know sort of their situation and what they need at that particular time or sometimes they’re quite brief and that’s also good because it’s just literally like I’m worried about my visa being cancelled at least you have a starting point there, and then we have for COVID 19 we had a team of volunteers you know at the office who were calling clients, talking to them, asking them more questions that the solicitor on duty has asked him to get that information from them so that at least when we go to the appointment we have some context to the client and they’re going through as well. |
| DT: 31:00
| Often with the clients that you see, I imagine it’s not just an intersection of vulnerability factors but also an intersection of needs. In that experiencing trauma at the hands of a legal system overseas is not just a migration law issue but may also be a mental health issue, and that experiencing family violence may just not be a legal issue but also a social welfare issue. How do you identify that intersection of needs or the extra-legal needs and how do you see your role in addressing those for your clients? |
| AM:
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| I mean one of the first one of the first tasks for me as a lawyer in sitting down and talking with a client who doesn’t speak English, who it appears to me doesn’t really quite understand the system, is I first try to make an assessment about a capacity. Firstly, do they actually understand what it is I’m saying and is that because of a language barrier or is it because of a cognitive issue or is it because of some other factor. TIP: In Australia, there is no uniform standard for capacity. Each area of the law has developed a standard of capacity generally relevant to the transaction in question. For example, in some contexts the relevant standard is that the person be of ‘sound mind, memory and understanding’, in others there is a need to understand the nature and significance of the particular transaction or activity. At a practical level the means of assessing capacity can occur in various ways. One of the key approaches involves capacity assessment principles. At a practical level a useful tool for assessing capacity in New South Wales is the NSW Capacity Toolkit. The assessment principles included in the toolkit are to always presume a person has capacity, that capacity is decision specific, that is not one test for all decisions, that one shouldn’t presume a person lacks capacity based on appearances, that one should assess a person’s decision making ability not the decisions that they make, and that substitute decision making is a last resort. In Gibbons v Wright the High Court defined a decision specific test for capacity to enter into a contract. The law does not prescribe any fixed standard of sanity as a requisite for the validity of all transactions. It requires in relation to each particular matter or piece of business transaction that each party shall have such soundness of mind as to understand the general nature of what he or she is doing by his or her participation. Given that an engagement letter between lawyer and client is a contract we would suggest that it is this test that lawyers need to look out for when assessing capacity in their clients. We do have a little survey that we can give to clients and I mean we probably should give it out more than we do, but it’s a survey that actually asks questions which they themselves might not have actually turned their mind to it and the purpose of that is to identify other legal issues that they might have whether it could be in relation to a debt, any criminal matter, and if we identify those then we would give the client an appropriate referral. If I can give you an example of a case study I recalled again this time, the facts might be a little bit hazy, I saw a family – mother father and a child, this would have been over 10 years ago so the facts aren’t entirely clear, they came to me for advice this was the first time that I’d seen them and from the very beginning it was clear to me that that they were just absent. They weren’t really understanding a great deal of what I was saying. I employed a technique where I asked them to repeat, I asked him if they understood the concept, they nodded, I asked them to explain it back to me so that I could be confident that they understood it and they weren’t able to. And I was in two minds while I was considering whether that was because of the interpreter or whether that was because of some cognitive issue with capacity and so I asked, I said, ‘look is there is there anything that is there anything going on that you want to tell me about?’ And it was at that point that one of my clients said to me that because of what had happened to her overseas she actually had internal bleeding and it was something that was obviously quite serious and that she had approached, the day before she approached the hospital and because they didn’t have a Medicare card and this was actually an emergency department, they approached emergency and they were turned away because they didn’t have a Medicare card, and that was actually causing them a lot of grief – understandably. It was very traumatic because they were at that time homeless, and when I say homeless they weren’t sleeping rough, but another family had taken them in and they were sleeping in the living area but there was also a lot of pressure for them to move out of that house as well. So, there were all these pressures that were affecting their ability to actually properly engage with the legal process. And so at that point I made a decision that it was appropriate to end the legal appointment and to get them to see a doctor which actually ended up becoming a really difficult task and there was a medical centre in Haymarket back then that was known for offering services without charging clients that didn’t have a Medicare card. I referred them to that medical centre at that time but unfortunately within about 15 minutes I received a call from the secretary from the medical centre who told me not to send immigrants there, which was a bit concerning, and said that they won’t the doctors won’t see them but ultimately I managed to find a doctor at the Sydney hospital who agreed to see and treat this woman without the need to present a Medicare card and he said to me that he would be willing to continue to treat her until management found out and told him to stop. I suppose the issue is often you don’t know and clients won’t necessarily be upfront about the other aspects because for them they’re here to talk to you about their immigration issue and I think for that family yes the medical issue was really quite severe, but their ability to get some stability in terms of a visa, because that visa actually would give them access to a Medicare card, could give them access to the ability to rent a place. They saw the visa as the way to resolve all their other issues. |
| DT:
39:00 | Well that was a really insightful interesting story, it’s very sad but I’m glad that you were able to find them medical care, but it’s a really interesting point because I think often we do forget about capacity as an issue and that’s something to always be mindful of, but what you identified in that story it wasn’t so much the classic capacity case where there’s some kind of intellectual disability affecting capacity but a contextual capacity ability where trauma is so recent or current that it’s affecting the ability to understand the advice at that time. Josh have you experienced something like that? |
| JS:
40:00
| I’ve had situations I remember years ago dealing with a client and I met with him, similar to Ali’s experience, and talking to him and trying to explain to him why he needs to apply by a certain date and what the test is and how that might apply to his situation, just wasn’t getting much of a response and part of that application process is obviously doing a statement about your claims of protection and why you can’t return to your home country, but just wasn’t getting enough from him and at that point I just realised that there’s no point in this appointment going on trying to fill in an application that he didn’t want to fill in at this point in time. So, I sort of pushed my laptop to the side and just sat and talked to him for a while about what’s going on and what his fears are. And through those conversations it turned out that he had some serious psychological issues due to the trauma he’d suffered overseas and even now he was having he was seeing a psychologist and a psychiatrist because he constantly thought people were following him in the street and he thought someone had followed him to this appointment so he didn’t really want to talk to me about his issues he was facing. |
| DT:
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| It sounds like again dealing with vulnerabilities in this area requires you to think laterally about the way you deliver advice and the practices that you would ordinarily use with a client who may not be experiencing the same vulnerabilities. I don’t know if this is part of your experience Ali and Josh but when I used to work on a pro bono basis with a homeless persons legal service, there is obviously an intersection between homelessness and mental health issues and mental illness and sometimes with the clients permission I would disclose the advice that I’ve given to the client or some of that advice to their case worker because I had to recognise that my skill set didn’t make it as possible for me to give that advice to the client as the social workers did. That the case worker was actually better placed to give that advice even if some of the nice legal complexities might have fallen out of it, to the client in a way that they understood. Do you use allied professionals in that way? Or how do you work with allied professionals to give advice to clients? |
| AM:
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| What I think we probably don’t, we would rarely give advice to a third party as a way of communicating, but I can actually think that could be quite useful in the sense that there might be a greater level of trust between the client and the third party, but unfortunately as part of our practice we generally don’t give advice to third parties. We will almost always, where we believe a client is vulnerable, with their permission invite them to be accompanied by a person who might be a friend, a social worker, a case worker, sometimes even a mental health professional, their psychologist, psychiatrist, who will be present and while the advice is directed to the client they’re present and they hear it as well and I’ve no doubt that afterwards they might discuss that as well. With respect to homeless clients if I could give another case study or an example, I acted for a homeless man who, he was actually a young fellow in Australia was a man who held a protection visa. He was homeless he had very serious mental health issues, he was involuntarily on anti-psychotic medication but also had a legal guardian appointed by the relevant statutory body. Now this gentleman had no insight into his mental health but did have an insight into the legal issues he was having. His visa was cancelled and his visa was cancelled on the basis, not on the basis that he had committed any offence, not on the basis that he had committed a crime, not on the basis that he had hurt anybody, but his visa was cancelled on the basis that he had no insight into his mental health and as a person with no insight into his mental health he was unpredictable. And therefore, the minister could not rule out the possibility that he could be a threat to the community. Now the trouble initially we were able to represent him because he did have a guardian, now unfortunately once his visa was cancelled the Department decided to actually move him to this jurisdiction to New South Wales. Which meant that his previous guardian formed the view that they no longer had jurisdiction to provide instructions on his behalf. Once he was brought to New South Wales, they also stopped administering his anti-psychotic medication. Now my understanding is that if you are an anti-psychotic medication and he was on regular medication and you stop that, that actually has quite a significant impact on you and your ability to function and what we decided, what we saw, was that while he did initially have insight into his legal matters and he very soon lost that capacity as well. Which meant that he could no longer actually provide any instructions to us. In terms of advancing his legal matter and a tricky ethical issue for us at that point was is it appropriate for us to actually make an application to get him another guardian in New South Wales? And we had to go and get advice about that because I felt as though it was proper for me to get advice before I acted on that. Ultimately the advice that we received was that we could not, because the advice we received was that would be crossing the line of taking instructions as a lawyer and actually engaging in some sort social work for a client which meant that we could no longer act and he lost complete capacity. |
| DT:
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| That’s terrible. It just shows the there’s already a fraught issue there around mental illness but some insight into one’s legal issues but then the legal issues themselves resulting in circumstances that cause that capacity then to diminish. There’s just so much complexity there in terms of the interaction between those vulnerabilities. I want to skip forward now to the end of a process with an immigration client. You’ve met with the client, you have assured them that you and the process that you’re guiding them through can be trusted, they’ve seen you advance their case fearlessly at a hearing and for better or worse you receive a result. Are there any particular challenges in explaining a result, I guess especially where the result isn’t a complete success? |
| JS:
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| For me I think from an immigration perspective, the biggest time when I felt like explaining a matter and it wasn’t a complete success is through the temporary protection group of people who were eligible for temporary protection visa. I think that’s a group of people who I felt when even when they got a temporary protection visa it didn’t feel like it was the end of the story or didn’t feel like it was a complete success the whole time and the reason for that is a number of things. It’s only temporary, meaning that there is an expiration date on that visa. Many now have to apply for a new visa in a certain amount of time and might not be eligible for those criteria for that new visa at that period of time and who knows if they will or they won’t be. The other issue around it was very much family reunion so people had spent years here waiting for their claims to be assessed and waiting for a visa that will hopefully allow them to see their family again and bring their family to Australia so they can be reunited. The unfortunate thing about temporary protection visas and is that they don’t allow you to sponsor your family to come here and then to travel overseas and to see them, obviously the clients would know they can’t go back to their home country where they feared persecution, but they would all have to meet in the third country and you’d have to get permission first to travel to that third country from the minister as well. And then you’d have to make sure you made arrangements with your family to meet you in that third country and there’s like a giant financial aspect to that. So I I’ve had a lot of clients in particular and you know you fought hard for maybe years to you know from meeting in the first time to apply for this temporary protection visa, to go into an interview with them with the Home Affairs, and then writing the submissions and then right at the end of that journey you know you get the visa grant which is what you have struggled for and you’ve fought for years. And then the first question out of their mouth will be like OK so when can I bring my family to Australia? And you’re like ‘oh you can’t sponsor on this visa,’ and you would have had that discussion years ago with them and explained to them about the visa, but I understand that the system has been changed, the migration system has being changing so much, and it continues to change that they probably hold onto hope that it changes again. Or they just forget because they get so focused on getting that visa, they don’t remember that actually I can’t sponsor anyone and now I need permission to even leave Australia to go to see them. They were the cases that I felt like we had a win, but then I had to explain to them that it wasn’t a complete win because then the conversation came around if I by arrived by boat earlier than a particular date I would have got a permanent protection visa, or I arrived on the same boat as this person who got a permanent protection visa I was on like I was almost granted a permanent protection visa years ago, but because the police check didn’t come back in time or because of this, I then had to apply for a temporary protection visa and now I’m here like I could already be reunited with my family, or you know I could probably not like there are other directions and things that make it harder to unite with your family, bring your family here, but they’re like they’ve got permanent protection visas they, they’ve had them for ages and I’ve only just finally got a visa and it’s a temporary visa. And I think they were the hardest sort of matters I had to deal with and explaining that to clients was quite difficult especially when you felt like you had a win for them and then the first question out of their mouth understandably is like when can I bring my family here? When can I see them? And you instantly have to break that news to them. |
| DT:
| It sounds like immigration law is an area where there is a unique intersection of all kinds of vulnerabilities, but of course many of our listeners are solicitors working in all kinds of areas whether that’s family provisions or family law or personal injury, are likely advising clients with one or more of these vulnerabilities from time to time in their practice. Ali if you could give one tip to our listeners today about advising and dealing with vulnerable clients what would that be? |
| AM: 51:00
52:00 | I think if there is one tip, I could give is that you never really have a complete sense of everything that is going on in the life of the person who is sitting across from you. Obviously that applies not only to that client but in every day relationships but just keep in mind, keep an open mind to the various issues that that might exist whether they could be abuse that they could be experiencing at home, do they actually have like, are the debt collectors after them, are they you know do they have an illness, do they have mental illness, what are the factors that could be firstly impacting their ability to engage with you to provide you with proper instructions. But I think this just does not affect, it’s not even as a lawyer but as another sort of as a human being if you do identify other issues that are currently relevant to them and issues that are having an impact on their life, ask questions about it, identify them, and where appropriate, make a referral and get them help get. Get the system where appropriate involved. |
| DT:
| That’s a really great insight that you’re advising your client not just as a lawyer, but you’re also dealing with them as a human being. Ali and Josh thanks so much for joining us on Hearsay! |
| JS: | Thanks David. |
| AM: | Thanks for having us. |
Part 2: Leona Bennett
| DT:
| Now Josh and Ali have just provided us with some very interesting examples of advising vulnerable clients in an immigration content, I will now interview Leona Bennett an accredited specialist in family law to provide us with her experiences in advising vulnerable clients during the breakdown of a marital relationship. Leona we’ve been talking to some other guests about advising vulnerable clients and in some areas of practise for example, in migration law those vulnerabilities might be a difficulty with English as a language or it might be an unfamiliarity with the Australian legal culture or the Australian legal system or a distrust of lawyers. In your practise as a family lawyer, what are the kind of vulnerabilities that you can see? |
| Leona Bennett: 53:00 | I think this is definitely the avenue of domestic violence and clients who have been a victim of domestic violence and you know we talk about domestic violence as this one big concept, but there are so many arms to it and I see a lot at the moment financial abuse regardless of the socio economic aspect it’s really prevalent in lots of family law matters. So, I certainly see that element come out and we are confronted by it lots when clients come in. TIP: Financial abuse happens when someone is excluded from financial decision-making or restricted from accessing money that is rightfully theirs. It is often linked to cases of elder abuse and separately domestic violence. It’s important to remember that financial abuse takes on many forms and can look different for each victim. |
| DT: 54:00 | You said that it’s not something that happens in one area of socio-economic status or one part of Sydney it’s a pervasive problem. I imagine it’s quite difficult to recognise though when you’re first confronted with it. What are some of the warning signs if you like of financial abuse? |
| LB: | Yeah, you’re completely right in that is very hard to recognise because I think often clients don’t recognise that they’re a victim of financial abuse. |
| DT: | Yeah that’s interesting. |
| LB:
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| You know often a client will come in and see me and historically when I have dealt with any level of domestic violence there is a real reluctance to share any aspect of that and often with those clients it takes many interviews for that to come out, but particularly with financial abuse, and I’ve had situations where I’ve represented perpetrators of financial abuse and they’ve had no knowledge that they’ve been abusing the person financially, and I’ve had aspects of parties have been the victims of financial abuse. Probably the distinguishing pattern is its behaviour that’s made them feel financially vulnerable or not having financial autonomy is probably the big thing. TIP: The majority of cases involving financial abuse are against women. Research has shown nearly 16% of Australian women experience economic abuse. You know the best example I could give is a client who we just met with recently and we’re finalising her affidavit and she explained to us that in her 15 year relationship she was told quite adamantly that there is no need for her to work and she shouldn’t. And she completely had approached and loved that earlier and she had young children, but when she continually looked to try and go out and gain some employment, she was discouraged and made to feel less of a mother for doing so. And in part with that she had no knowledge of the mortgage notwithstanding the questions she asked. She wasn’t given any amount of money each week for the family to survive, she was given a credit card and then she was questioned on all aspects of the credit card at the end of each week. So, for her, her existence became one of borrowing off her mother if she needed to buy her daughter a dress because she was worried about the reaction she would get from her husband. It was not buying a coffee because she would become accountable and questioned for it and it became her norm and she didn’t really know any better to be completely frank in that. She was quite knowledgeable but it was strange but she had no control to change it, she didn’t have employment, she didn’t have the capabilities to reach out and get her own funds coming in so she felt highly dependent upon the other person and I think that’s what that’s the aspect of financial controlling they want someone to be dependent on them. |
| DT:
57:00 | That example that you described really kind of vividly illustrates a lot of the behaviours that comprise financial abuse. You have control over the flow of funds and access to money, you have a scrutiny of pretty ordinary household spending like buying a coffee or buying a dress. What are some other common behaviours in terms of financial abuse? |
| LB:
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| I think it’s the level of control and management of it and making life really difficult for the other person. You know things that people sometimes aren’t aware of. I had a female client who was really successful in her own right in her employment and when we went through her pay slips it became evident that her pay didn’t go into a bank account that she had any access to. So, her pay, and this was a really astute woman who was very very good at what she did. The last person you would have put in this category and the dynamics of their relationship where that he’d always run the money and they just accepted that and when things were great in their relationship it was a joke that he just managed all of the funds. But as things became more estranged, she didn’t have access to bank accounts. She did have a credit card that they use jointly but again she got questioned on it. If she ever asked to take some funds out there was a whole rigmarole of questioning around what that involved. And the level of guilt associated with it. And what we see a lot with some mothers is that the guilt extends to any costs associated with the child and then what the mother does is they stop spending any money on themselves. And all the funds that they attribute go towards children and children’s costs and that can be things like specialist appointments, speech pathology. I had a client want to tell me that she was afraid to book the speech pathologist because any time the bill came in that there was an argument about it, but it was desperately needed for this child and then she had to give on other aspects of her relationship to make sure that that bill got paid and she felt she had to for the benefit of her child. So, it’s a really really hard existence and I think something that happens far more often then we probably know in society in all aspects of relationships. |
| DT: 59:00 | Because I suppose so many people either don’t recognise that they’re being financially abusive or don’t recognise that they are being financially abused. |
| LB: | Absolutely. |
| DT: | When you’re meeting a client for the first time, or maybe the second, third or fourth time, because it’s hard for someone to know if they’ve experienced this it might be difficult for them to disclose or even to think to disclose some of the behaviours we’ve have been describing. What are some of the tools that you can use to tease out that information in a sensitive way to diagnose where that’s happening? |
| LB:
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1:03:00 | I think being really mindful not to do it too quickly. You’ve got to build up and establish trust with the client. I often find that as a family lawyer you build a real connection with your client and they’ve got to be comfortable with you to make those type of disclosures. Often there isn’t even an awareness that they’re in that category until they, I suppose, re-establish themselves or until they gain some education. I found a lot of clients who have gone and saw counsellors after this process have accepted more that the behaviour that was happening is unacceptable or was unacceptable and they’re then able to talk about it more freely. But questioning them quite lightly about things and not in too evasive a manner. So, for example if a client comes in and I’ve identified that in their relationship there was different income earning capacities and I start asking them about the finances, they might become very embarrassed because they don’t know. I think really normalising that for them first off is really important because even in relationships where there isn’t financial controlling, as human beings we tend to take tasks on each in relationship. So, in most relationships that I see that come in, one person will have more of an idea about the finances they might have paid the bills for the family, they might have a better idea of what the electricity costs each quarter, so normalising that it’s okay that you might not have that knowledge first off and then discovering why you don’t have that knowledge. So, could you go to the bank and access that bank account if you wanted to because if it is a joint account you could actually just walk up. Or do you have online banking and if the response is ‘well no I don’t cause it’s only in that person’s name and I’ve asked them multiple times and they refused to give it to me, then you start getting more of an inkling that there has been an element of control and that this person hasn’t had the financial autonomy that they probably should have had in the relationship. But I think it’s really important to really just get an idea of the dynamics of the relationship before that happens. It’s probably sometimes harder when you’re acting for someone who is the financial controller because in their mind and I’ve had lots of clients like this, they have completely justified their existence and it’s often on the basis of ‘oh well I just give them a set amount of money per week because they’re not very good at saving and they’re a bit of a spender so I manage all of the funds and I pay all the bills, but I give them $400 a week and that’s great cause they don’t work and look how good I am at doing that.’ And then the question might be well what does that $400 go towards. And then when we break that down, I say does that pay for your kid’s expenses and does that pay for shoes…yes, yes that includes all of those things. And as we go down, I say well that might not be enough in your family. And this might be someone who lives in a $5,000,000 house with a husband who runs a business, runs it very successfully, earns a lot of money, and then the question is well what access does the partner have to other funds or is it just a set amount that comes across? And then it’s very hard to have freedom of movement if you don’t have money to allow you to be able to do that. So then addressing how that happens and to the credit of lots of my clients when I’ve spoken to clients who’ve managed funds for a very long time and managed them in a controlling way and I express to them they need to give the other person financial freedom in the negotiations and family law and that they need to transfer a lump sum across to allow that person to get their advice and take those steps, I can see that there’s an automatic reluctance but they tend to get there. It’s an education process for them as well as, and it can be a cultural thing it can be a ‘well that’s what my family did, that’s what my father did, that’s how we’ve run our lives, that’s how we agreed we would run our lives moving forward’. |
| DT: | There’s probably a lot of people who see it as an extension of that division of labour. |
| LB:
1:04:00 | Oh absolutely. And justify it more and more, but what we do see is when the relationship becomes more strained, the restrictions become greater and then and then it becomes an aspect of control. And often when you make a decision if you have children that one party is going to stay at home and the other is going to be at work, the dynamics of your relationships change. You might have been a dual income partnership before where you both have money going into separate bank accounts, if you suddenly don’t have any money going into your bank account you become dependent upon the other person. They then transfer money, or do you have a joint bank account and then the dynamics of having to ask for that money changes the power balance and it becomes very very difficult for some parties. |
| DT: | Now how does the presence of financial abuse in a relationship make your job more difficult in advising the person who’s suffering the financial abuse or even the person who’s performing it? |
| LB:
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1:06:00 | It does make it more difficult in two ways I think. It’s a really brave person who takes the step to separate when they’ve been controlled, they’ve been the victim of domestic violence because often for many years they’ve wanted to take that step and they’ve been reluctant to do so because of the backlash. So, I think it’s hard in the beginning to completely support them and let them know that that’s the right step, but also to be able to give them an immediate answer so that they feel supported financially through the process. One of the things I think we see quite often in toxic relationships that involve abuse is that the traditional forms of domestic violence, the harassment or the physical violence, can stop when you remove yourself, but the financial controlling can continue and it can continue by manipulating the court system. It can continue by not providing any funds. We have a terrible matter at the moment where parties have separated, there was really bad financial controlling in it and in this circumstance, there have been multiple orders made for the husband to pay the wife spousal maintenance. She is looking after their young child, particularly through COVID-19 she’s been out of employment and he has not made any of the spousal payments, continually pays them very late or does not pay them at all. We recently ran another application to take him back to court, but the court didn’t have time to deal with it, it wasn’t given priority and that poor lady week to week should, and had, an order that she could have been reliant upon these funds to pay the rent for her and her son to live in the rented accommodation cause they left the matrimonial home and he’s refused to provide those funds. In addition, he sold a house and has put the money in his re-draw facility which those funds could have been released. That’s all financial controlling. That’s controlling the finances to wear her down so that he can try and negotiate aspects of this family law settlement that suit him. |
| DT: | We’ve heard news reports that during the current virus pandemic there’s been increases in domestic violence and domestic abuse. I mean that’s such an awful example of that dynamic where even using the family court system, that abuse has continued because the courts been unable to deal with quite as many matters at the moment as it otherwise could have. |
| LB: 1:07:00
1:08:00 | Yeah, it’s horrendous and the reality is even before COVID-19 parties who have been the victim of financial abuse continue to be the victim for a significant amount of time until they sever their financial relationship. And often matters can take, even amicable matters, can take six months from the day parties separate to sort it out, and that’s if everybody’s on the same page about the way that they run it. You know if it a matter is in court it can take 2 – 2 1/2 years, 3 years. I had a client who left her home and the parties lived in beautiful accommodation she moved out. Her income was a quarter of her husband’s and the day she moved out he stopped paying the mortgage. He stockpiled a whole pile of money, refused to pay her child support, notwithstanding multiple court applications, he continually manipulated their finances and refused to offer her anything that was remotely in the range of what would have happened. She took three years and nine months from the first day to get her matter in court. We were very lucky in that the judge handed down a judgement a month after they heard the matter and ultimately rectified the situation in that, gave her a readjustment for all the things the husband had done wrong, but that’s because that client stuck with the process. There are lots of people who get worn down. They can’t handle the emotional financial strain and the financial abuse that continues and that someone can use the system to continue to perpetrate it. So, in her instance she kept fighting from the perspective of she didn’t take some of the silly offers that were being made and that she re-established her own self financially to be able to support herself, but not everybody can do that. |
| DT:
| Almost four years is a long time for anyone to be resilient even if they are at the start of that. We’ve talked a bit about how the system can be used to perpetrate financial abuse. What are some of the tools that the family law system has to help you alleviate it at some of those earlier stages? |
| LB: 1:09:00
1:10:00
1:11:00 | Yeah, I think I shouldn’t bag the system without, you are completely right, addressing some of the really good things that can happen. If I have a client who comes to me and for example one party has been on a very good income and is managing lots of the finances, and the other is on very little in common they’re separating, one of the first things we often hear from the party with the making the income is well you’ve made the decision to leave so that your bed you now go and lay in it. And so, I have my income you have chosen to walk away from me, you’ve walked away from what comes with me. That’s sort of the attitude that sometimes happens. It’s important explaining to clients the concept of spousal maintenance and child support and the avenues that are available to support them through it, but also educating clients on Centrelink and the benefits that exist. So, I think in the first instance from an urgency perspective figuring out what support is available to them through Centrelink. Secondly, immediately looking at some child support and seeing if we can establish it, but then thirdly and importantly depending upon the size of the income of the other party, figuring out spousal maintenance and if it’s appropriate and lots of people don’t understand the concept of spousal maintenance. I liken it to the American version of alimony, but what we have here in Australia is a system that really does deal with it if someone needs it and if we go into court and we have a husband who’s on an income of $160,000 and a wife is on an income of $20,000 and they’ve separated and she’s left the house and he’s living in the house with a very small or no mortgage, the court will be very open to making him pay to her an amount of money properly to assist her until you get to a resolution of everything and to empower her to have the financial means to get the right advice and make those decisions. So that avenue is available, and it comes down to whether one party has the need and whether the other party has capacity to support them. So that’s sort of the argument that you have. But it’s definitely there and it’s available and we probably look to achieve that for clients more than people would anticipate and often the threat of looking to achieve it might mean that we get some support that comes across because parties want to avoid those initial interim hearing costs. |
| DT: | I suppose it’s a remedy that you really have to pursue much earlier in the process than you otherwise would if there is financial abuse present in a relationship? |
| LB:
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| Yes absolutely and I think it’s a remedy that needs to be done quite quickly because otherwise people, the financial abuse continues and their security is really taken from them because they don’t feel like they can go and see a lawyer because they can’t pay the lawyer’s bill and then they are disadvantaged because when their partner negotiates with them they feel like they’ve got to accept whatever is on the table because they don’t have any options. You know I’ve had clients ring me up, I had a client ring me yesterday quite sadly and they sold a house for $5,000,000 and the husband works in a business that’s worth $4,000,000 and she said to me I don’t have rent tomorrow. All my money is gone I don’t have any rent can you please reach out and see if the husband will agree to release some money from the trust and he has been withholding making an offer of settlement to her because I think he wants to put her in a vulnerable position where she is afraid about being able to pay the rent for her and her children in the house. So, there are certainly aspects of that that that continue. This poor lady told the story that was the norm for her where she would be at the butchers and she would ring up and have to say to her husband can you please transfer money to my account cause I’m trying to buy the meat for dinner and he said well how much are you spending. She’d say well I’m getting mince and he goes I’ll put $30 in. So, he would transfer it, she’d wait till it cleared and then she would use the card as part of the process. And this is a family who lived in a $5,000,000 house and the husband run an exceptionally successful business and still does. And through that business when we went through tax returns he drew an income over about $600,000 per annum. But the wife had absolutely no access to it, no access to the joint bank accounts, had no idea where that money went and had to request on a weekly basis money to be able to meet the costs of the family. |
| DT: 1:13:00 | You were saying before that one effect of financial abuse can be that someone maybe doesn’t feel that they can approach a lawyer because they don’t have the money to pay for it. As a lawyer what do you have to do to kind of remedy that special disadvantage from your own perspective? Do you find you carry work in progress for longer than you otherwise would, or you don’t invoice for longer than you otherwise would? |
| LB:
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1:15:00 | We certainly will carry matters definitely and I think in family law to be really empathetic to clients you have to in some instances. So often when a client comes in and sees me initially when they make their appointment it’s often pay for your first appointment and then you put some money in trust and we run your matter and we give you an outlay of what it might cost. Often in that first meeting I’ll say to clients I don’t want you to stress about this, there is enough money in your pot that whatever happens you are going to be okay financially and whatever result even with whatever he’s offering you your end result is financially you are going to be alright at the end of this. And I don’t want you to worry about the steps to get there will get you there and then you can assist in finalising whatever your costs are at that point in time. Because I think for lots of clients when they’ve lived in a relationship where financial abuse often is aligned with a sense of you haven’t bought anything to the relationship, so when you deal with a client who has been the victim of financial abuse their role in the family has been completely undermined by their partner. You don’t do anything I bring in the money you’re only this, you’ve never worked today in your life, I’m the person who’s financially supported our family. We have what we have because we have it. And when they come in and I speak to them and say the Family Court way back in 1977 determined that the home care role was as important as the financial provider role and in fact has now got all of these section 75(2) adjustments that reflect that because you took on that role you will have a greater future need. For many people you can see their relief when they walk in because they’ve been told for so long that their worth isn’t measured or can’t be quantified and in fact if it is it’s very small. They are quite shocked when they sit here with me and they realise that their entitlements might be at a certain level that they couldn’t have ever contemplated before because their partner has told them for a very long time that they wouldn’t have any entitlements, that they’d have no interest. And then that’s part of their fear of leaving the relationship is that if you hear that all the time it’s a bit hard to unhear it or to think that it might be any different. |
| DT:
1:16:00 | That point about realising the value of what you brought to the relationship is probably a really uplifting note to conclude on, but do you have one final tip for our listeners who in family law or any other field might be concerned that they have a client is experiencing financial abuse? What is the one thing they should be looking out for? |
| LB:
1:17:00 | I think tread softly is what I’d say in the beginning. Clients are very confronted straight off the bat if you suggest to them that they are the victim of financial abuse or domestic violence. One I don’t think anybody likes to think of themselves as a victim, and two it’s been their norm for a very long time. And they often don’t know any different or they know different, but they haven’t necessarily articulated it. Often with clients the more they tell their story the more you establish what’s going on in their relationship, but they’re not going to tell that story at the outset, it comes with time, so if you tread softly the client will make more disclosures to you and then while they’re making those disclosures they’ll accept as well that that’s not okay. When you live in that type of relationship things get washed away that would otherwise be a really really serious thing if it happened in isolation. You know these clients when they make disclosures, they’ll say things to us, and it might be 5 weeks after they’ve told us something else and my team will say why didn’t they say that in the first place that’s enormous. And I think the answer is that they’ve lived through it, so it’s become their norm to a large degree and an often you just accepted, and you go to the next thing and you take the next stage. So tread softly, but also be really aware about helping them out and putting them in contact with support that can help in the form of counsellors who might be able to also assist them, because we play an important role in advising them as to the legal implications and how we can move them forward beyond their separation, but they need emotional support to know that that relationship wasn’t okay and that dynamic’s not healthy because you don’t want to see them re-enter another relationship like that. |
| DT: 1:18:00
1:19:00
| You’ve been listening to the Hearsay, The Legal Podcast. I’d like to thank our guests Ali Mojtahedi and Joshua Strutt from the Immigration and Rights Centre as well as Leona Bennett working in family law from Southern Waters Legal for coming on the show. If you liked this episode about advising vulnerable clients, like to our episode about sentencing with Matthew McAuliffe and Michael Vo which touches on dealing with similar issues in the sentencing process. Or, for something different, try my interview with Chris Gingell and our very own Araceli Robledo about marketing for lawyers and law firms. If you’re an Australian Legal Practitioner, you can claim one continuing professional development point for listening to this episode. Now whether an activity entitles you to claim a CPD point is self-assessed, but we suggest this episode constitutes an activity in the professional skills field. Now if you’ve claimed five or more CPD points from audio content already this CPD year, you may need to access our multimedia content to claim further points from listening to Hearsay. Visit htlp.com.au for more information on claiming and tracking your points on our platform. The Hearsay team is Tim Edmeades who does all our sound engineering, Kirti Kumar who puts together our website content, Araceli Robledo our marketing guru and me, David Turner, your Hearsay host. Hearsay The Legal Podcast is only possible thanks to Nicola Cosgrove and Chris Cruikshank, co-founders of Assured Legal Solutions: making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. |
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