Key Practice Areas
New Years Resolution … Or Is That Dissolution?
Wednesday, December 18, 2019
Tradition has it that the New Year is an opportunity to begin again and to reinvigorate. It is also a time for family get-togethers and a new school year for the children.
It is common knowledge amongst family lawyers that life changing decisions are made at this time. A partner to a relationship will cry “never again” as they return home from dinner with the “In-laws.”
Others make decisions based simply on a new beginning. Quite often it’s the case where one half of a relationship has deeply considered the ramifications of separation. The other half? It’s like a tonne of bricks have fallen upon them. They are devastated and it’s a fine line as to how they respond.
Family lawyers are left to tread a knife edge when their respective clients’ line up against each other.
The logical and objective approach of the law often struggles with this competing dynamic borne of domestic circumstances. What goes on behind closed doors and the domestic arguments that may have been honed over years, sometimes decades, are reignited in the public arena.
The Family Court and its enabling legislation, the Family Law Act 1975 (”the Act”) has struggled with this dilemma since its inception. The Act has undergone constant revision in an attempt to address the seeming impossible…taking emotion out of Family Law proceedings.
Of course this is impossible and it is recommended that resolving a property dispute or arguments relating to proper arrangements for children within the judicial arena should only be regarded as a last resort. It would seem logical that couples who have bought and sold properties together, trusted each other, sworn allegiances and raised children should be able to resolve issues that might arise at separation.
However these are the ties that bind and sometimes when broken, depending on the reason, no amount of logical recourse can assist. The couple who call time on a mutually agreeable basis are rarely seen within the court process.
Behind Closed Doors
Often the disputes and arguments that are heard in the courtroom should more appropriately be left behind closed doors. This dynamic is often the reason for separation and newly separated couples will not agree that white is white or black is black. Grey will not be tolerated because it is a compromise. He/she always gets their own way and enough is enough seems to be the modus operandi of separated partners who have reached the stage of litigation.
The stakes can be high and incredibly poignant in Family Law. This is particularly so where there are children involved. Most parties to Family Law disputes have children. The good parents resolve their issues regarding the children’s needs with a view to their best interests. Some parents treat their kids like chattels and use them either as a bargaining tool or, a different tool; more like a hammer to bash the other parent over the head. Judges cannot emulate King Solomon of biblical times and “divide” the child in equal shares for each parent.
Perhaps this scenario plays out in the minds of the judge when hearing evidence and argument concerning the “best interest” of the child. One judge has been heard to mutter “…these children would be better raised by monkeys. Unfortunately there are no monkeys before me today and I must decide between the competing interests of their parents…” (not a direct quote).
The Last Resort
Mediation, conciliation or arbitration are now a prerequisite of all jurisdictions and none more so than the Family Court. Mediation is sanctioned by the Family Court and it is necessary to establish before the court that this facility has, at least, been tried. Clearly it takes two to tango and if one party is not interested in a civilised discussion, is uncomfortable or in fear of the other then the court is the only means of determining what is a fit and proper regime for the ongoing care, and welfare, of the children.
This is not a preferred option and quite frankly, no one with any experience in these matters believes it is appropriate. Solomon no longer presides and monkeys do not get a look in.
The Bottom Line
Avoid the court process. If there is no alternative and all other avenues have been tried then the Family Court is structured to at least keep in touch with the most basic of principles; the best interests of the child.
If it is a property dispute then there is an emphasis on what is fair and equitable in the particular circumstances. Get yourself a good lawyer, one that is focussed on the best way through the quagmire given the unique (always) factual situation. Instructing an “attack dog” lawyer driven by ego and aggression may initially seem appealing. Be careful however as this could result in more stress and higher costs.
The best family lawyer is one who has the ability to play nice in the beginning but can still bring their “A game” if the situation calls for it. The most important goal is resolution and closure. A family lawyer’s role is sometimes to be a mediator, sometimes a litigator and other times a social worker.
For the most part all these skills are needed in equal measure. If the ex-partner does not want to negotiate and simply wants to “win” the final argument, it is difficult to progress and resolve the dispute without resorting to litigation. A good family lawyer must be prepared and be capable of advancing their client’s entitlement in whatever role is appropriate in the circumstances.
How We Can Help
Quinn & Scattini Lawyers are highly experienced with all types of family law matters. We use compassion and understanding for all matters which are emotional, particularly if a matter involves sensitive issues such as divorce. With over 40 years’ experience, Q&S’s Family Law Team are experts in the family law field. The team also boasts two Accredited Family Law Specialists.
Our expert family lawyers are available at any of our local offices.