Listen: Kindness in Family Law

Kate Russell
Often when we think of lawyers, it brings to mind combative scenes in a courtroom. We think of lawyers arguing a case with a winner and a loser. But Family Law in Australia works differently. Welcome to The Separation Guide Podcast. I’m Kate Russell, and in this episode, I’ll be learning if there could be a kinder approach to Family Law.

We’ve had ‘no-fault’ divorce in Australia since 1975. This means that in most circumstances, it doesn’t matter what caused the breakdown of your relationship. Unlike criminal law, your lawyer shouldn’t be fighting your case hoping to win. Their job is to help you reach an agreement with your spouse over property and financial settlement and child arrangements.

So is there really a place for escalating your matter to an inevitable court date, and who is actually benefiting when that happens? Is it time in Australia for another approach? What does kindness look like in Family Law?

Joining me today is Canberra-based Family Lawyer, Perpetua Kish. Pepe is the Director and Co-founder of Balance Family Law and a founding member of The Kind Lawyer movement. Pepe is changing the conversation about divorce from one of combat to kindness, and she commits to finding peaceful, ‘outside the box’ solutions for separating couples. Her innovative approach to family law has seen her and her firm recognised with over 22 national and international awards and accolades.

Also joining me is Angela Harbinson, the Co-founder and CEO here at The Separation Guide. Angela’s career has included work in the legal, accounting and financial services sectors, plus owning a successful marketing, brand and digital agency. She now applies this blend of professional experience to our social enterprise, which blends tech with people and uses a client-centred approach to simplify the complex problem of separation and divorce.
I started by asking Angela’s what made her see a better way to approach separation and divorce.

Angela Harbinson
When I started looking at this, I had over 30 friends that had been through a separation and divorce and not many of them had a very good story to tell. The common theme that I found that there was a lot of overwhelm and a lot of hindsight moments where people said, I wish I knew this, or I wish I knew that because I would have approached it in a really different way.

What I also found is that divorce and separation, it’s a very complicated maze and it’s one that you’re having to navigate at a time when you’re already really quite stressed and under pressure. It’s a very vulnerable point in your life. So I just found that looking at the information that was out there, there was so much that was focused on the court, so much of the language was really focused on escalation and fighting and a lot of legal jargon, which really has the effect of making people feel more vulnerable and even more exposed when you don’t understand some of the language that’s out there.

So the other thing I noticed was that no one seemed to be focusing on the full problem because divorce impacts so many aspects of your life. It’s not just about the legal side of it. It’s your health and well-being. It impacts your children, it impacts your workplace, your finances, even where you’re going to live. It’s a really big life problems and life decisions that you have to make. And there was nothing really in the market that provided that agnostic view of all of it and explained what your options are and help you really navigate, I guess the system itself. So that’s why we started The Separation Guide. And our goal really is to be a starting point for a better separation.

Kate Russell
How about you, Pepe?

Perpetua Kish
I agree completely. I certainly found as a lawyer that clients come to see me and they have an expectation that, okay, divorce is a legal problem and you, as the lawyer, are going to come and fix it. And as Angela said, it is so much more than just a legal problem. There are so many issues, financial, emotional, that do need to be managed.

And there isn’t really that understanding in the community that that’s how to best resolve the problem is to take a holistic approach and respond to all of these issues. So the irony is that I’ll often say we need to put law in its place when a client comes to see me, and often I’ll say it may not be at the top of the list. It may not even be at the middle of the list. It’s a necessary factor that we need to take into account because the benefits of resolving your matter on a legal basis mean that you will have that security, you will have binding orders, and you’ll make sure you’re not doing anything that’s at odds with the law. So it is very important.

But I always remind clients that family law isn’t the type of area of law where you have to do what the law says. At the end of the day, it’s your life and you should feel empowered and strong enough and informed enough to make decisions that will affect you and your family, your separated family. That means sometimes your spouse, you might be the parent of your children, moving forward. So I’ll say the law is here to help, not to hinder.

And I like to use a bit of an example of the staircase. So I’ll say to my clients, when they come to see me, imagine you’re at the bottom of the staircase now. And if you look at the top of the staircase, that’s the future. And running alongside that stairway is a handrail. And I’ll often liken that handrail to the law. And I’ll say, look, I’m here. I’ll walk up the staircase with you. I could stay at the bottom. Any way you want me to be, I’ll be there to support you and to let you know that the handrail there, which is the law, is there for you to rely on if you need to, you can lean on it. It can help you. Certainly with vulnerable people, they might need to hold on to that handrail a little bit tighter than others. But just that awareness of it might be enough to help you walk up that stair and reach the top and get through the separation process peacefully and in a really civil, sometimes amicable matter with your former spouse.

Angela Harbinson
I love that analogy. It’s a great one. It’s just how to take that next step.

Kate Russell
Pepe, you talk about a kinder approach in family law. What do you think that looks like? And how does a kinder approach benefit your clients?

Perpetua Kish
Yeah. So the kinder approach – first of all, I want to emphasize that kindness doesn’t need equal weakness. Often there is that misconception that if you’re being kind, you’re being too nice, and you’re going to roll over, you’re going to acquiesce and just give in. But absolutely not.
So the idea of kindness and lawsuit came about because generally people don’t equate lawyers with kindness. In fact, when I started the movement, people would say, okay, that’s a bit of an oxymoron or good luck with that. Sure. I’d like to see how that plays out. So I did get a bit of feedback.

And look, that feedback is in line with what the research says. I mean, lawyers are ranked in the bottom ten of trusted professionals. Only last year, the governance Institute said that one-third of the people that asked or the respondents considered lawyers to be unethical. And I certainly felt that way from time to time. And one in five young lawyers also leave the profession in their first five years because they feel unhappy.

So there’s a lot of things going on that don’t really suggest that kindness and being a lawyer, work together. And instead of leaving the law. Look, I absolutely thought about it, Kate and Angela. Sometimes I felt it hasn’t really aligned with who I am and who I want to be. But I thought, I do feel so much connection to this profession and helping people. So what is it that I could do better to make my practice of law and the impact on my clients better? And it came down to something that’s within my control and that’s choosing to be kind, because kindness creates trust, and trust creates a safe place for relationships to be built, to be fostered, to be repaired and to be strengthened.

And so kindness and law is recognising that life is all about relationships. It’s relationships between you and your former spouse. It’s relationships between the lawyers who work in that space. And it’s about understanding how the relationships and the quality of those relationships, and if they’re underpinned by kindness can actually help strengthen, foster and repair ongoing relationships moving forward.

Because when people separate, even if it’s a property matter, their relationship isn’t yet over. It still changing. For parenting matters, it will continue until the children are 18, sometimes beyond. And for property matters, there’s a lot of paperwork to get through, and that often doesn’t happen in 5 seconds. So there needs to be a transition process. And you can’t just say, okay, we don’t live together now it’s over. No, your relationship is going through a transition and it needs to be managed. That relationship can be best be managed if we focus on looking after that relationship. And through kindness.

Angela Harbinson
Yeah, great point.

Kate Russell
What difference can a lawyer who has this kind of Proactive approach make in avoiding escalation or de-escalating a situation that looks like it might be heading to court?

Perpetua Kish
So I think it comes down to how we look at the matter and are we looking at the other person as an adversary or someone to work with? And when I meet most clients, automatically they think, okay, myself and my ex were now against each other. So sometimes I have to do a little bit of work to remind them or rather help them come to their own realization that the other person isn’t someone we want to work against. We are better able to achieve the outcomes we want to achieve if we work with them.

And rather than put them on the opposite side of the to the same side and put the problem on the other side of the table and say, okay, it’s two of us against this problem. And that problem might be how to resolve parenting relationships. How do we work through this property settlement? Yes, some might say that’s a bit idealistic. People who are in turmoil, how are they able to work together?

But it is making that shift about what is within our control. Something I find resonates with some of my clients is that shift from blame to accountability. So clients will often say, okay, it’s because my spouse did this or they did that to me and it’s all their fault.

And first of all, I’m always willing to listen because if a client doesn’t feel heard, they can’t heal. So it’s really important not to shut down those feelings. Sometimes it might mean working with other professionals to help them work through those feelings. But once the client has felt heard, then they’re going to be more receptive to guidance and advice to the next steps.

As I said earlier, the law should help, not hinder. Legal advice is just one aspect of the advice that we give our clients or the guidance we give our clients. The other is conflict management and understanding how our actions are going to impact things moving forward. Instead of always expecting the other person to do all of these things, we’ve got so much more control over our own actions and reactions rather than the actions of the other party.

And so a few things with my clients I like to emphasize is that often and I often sit with other lawyers, they begin dialogue by saying, if you don’t do these things, this will be the consequence. So it’s a real fear-driven process. Ultimatums are made sometimes threats.

And I often say you get better outcomes when you put forward a solution. People move towards positive outcomes and move away from fear and threats and terrible things. We don’t want to deal with that, so I’ll always talk with my clients about this and say, let’s give them an incentive to work together rather than an incentive to hate you even more.

Angela Harbinson
Absolutely. Yeah. We’ve done a lot of research and development around the factors that can cause escalation. And that’s sort of part of what we’re doing with the Separation Guide Ethical Charter and the group of professionals in the network. You know, the simple act of picking up the phone and talking in a resolution mindset from the beginning just goes a long way to keeping a matter on track.

An example of this, I guess, is with Guided Separation, working directly with clients. It’s a form of evaluative mediation. But the format and the way it’s structured is from day one talking about resolution. When would you like to get this resolved? How can we move forward with this and what does success look like for you? And it just really shifts people’s minds from this battle, as Pepe mentioned, into ‘we can solve this.’ This is just one step at a time, and it’s a series of short phone conversations rather than really big events that can be quite daunting.

And we find the same approach really works well when you’ve got independent solicitors working. If they can pick up the phone and talk to one another quickly and talk in a resolution mindset, there’s a far better chance that their clients will stay out of the courtroom. I hear horror stories of where the very first action is a solicitor writing a letter of demand to the other side. And it’s just not a practical way to reach resolution a lot of the time.

Kate Russell
When someone’s choosing their lawyer at first and they’re trying to decide which family or representative they’re going to have, are there any red flags we should be aware of when they’re having that initial consultation that might indicate that they are someone who might escalate matters?

Perpetua Kish
So again, it’s about really taking that step back and viewing the problem holistically. And when any client goes to see a lawyer, they’re going to be telling their lawyer their side of the story. So when I meet with a client, there’s two things that I focus on. It’s really listening to the client and making sure they felt heard. And then secondly, it’s then providing them with some guidance as to ways to get to resolution, in my opinion, as quickly and as civilly as is possible.

And a red flag might be if the lawyer is saying to them after they hear parts of their story, okay, that person, in reference to the other spouse, is basically attributing all sorts of negative qualities to the other person. It can be really gratifying to have someone essentially come on board and go, yeah, I’m aligning with you if you’re a client. If you’re in that really negative space and you’ve got someone like a lawyer telling you everything that you’re saying is correct, you’re going to get an outcome in court, which is what you are hoping for. Even if they mention the court as a place where you might end up.

Those are all sorts of red flags in that that person is really not looking at both of you working together to achieve this resolution together, which is necessary because, as I said, your relationship isn’t over and both of you need to come together to reach an agreement. Agreement suggests you have to work together.

So that lawyer is already being divisive in that. It’s saying, okay, we’ve got spouse one and we got spouse two, and rather both of you working together. It’s saying we’ll need to work against each other to achieve an objective. So it’s focused really on what your position is, rather than what your sort of interest, goals and needs are and how they might allow align with some of the interest, goals and needs of the other party.

So rather than looking for common ground, a red flag would be looking for all the differences and the possible issues, because at that initial stage, we want to be trying to build some semblance of trust, because, as I said, trust creates a safe place to move forward and repair relationships. So anything that erodes that trust, anything that might make you feel even more aggrieved and angry at the other person, might be a red flag to take into account.

Kate Russell
So what are the positive signs? Pepe, you mentioned someone who listens and someone who talks about resolution. What are those positive signs that you should look for when you’ve found the right person to engage?

Perpetua Kish
Okay. Yes. So it is somebody who really does put all those options on the table and helps you as a client, feels so much more informed moving forward. So it’s not necessarily the lawyer saying, this is what you need to do, or this is what you should do, is hear options that might work for you and then giving you, I guess, the confidence to explore some of those options and deep dive and a little bit more to find out what might work for you and your family.

Angela Harbinson
From the feedback that I’ve heard, if your lawyer is having a really practical conversation about the pros and cons, if we go this, this is what might happen if we go this way, this is what might happen and giving you those outcomes for you to choose. But another really important point, I think, is how you enter those conversations in the first place. So if you go in to a first meeting with a mindset of saying, look, we want to treat each other fairly. We just don’t know what that looks like. That actually frames it up for the person you’re meeting with of how you want to approach this. Because we see throughout Q&A that a huge number of people actually do want an amicable separation. They’re not in this for a fight. So if you’re put in the hands of the right lawyer to help you with it and you frame your very first meeting with them in that way, they will guide you, hopefully be guiding you in the right direction.

Perpetua Kish
I would totally agree, Angela. I’d say so many clients come into the space feeling very frightened and very uncertain. And the goal, one of my goals, the family lawyer, is not to solve all their problems in that first session, that first phone call, but rather shift their way of thinking from like, okay, these are all the terrible things that could go wrong, but, oh, okay, these are all the options that I could utilise so that things could go right and give them a little bit of… I say little because it’s a lot to expect a client to suddenly feel 100% better after that first call. But often they’ll be like, okay, I feel like I have some direction now, or I feel like I’ve been able to organize some of my thoughts, and I’m more aware of what my options might be moving forward and confident in a practitioner who will be able to guide me.

Kate Russell
Something we definitely hear from people is ‘I feel better now’ once I’ve had a chance to have a conversation that gives them some options.

Angela Harbinson
Yeah, look, we found the same thing with people actually even doing our Q&A, because that’s really what it’s about. It’s about education and guidance as much as it is about giving your lawyer or professional that you’re about to meet with a brief so that they understand your situation before you even get into that meeting. And a lot of people do give us feedback at the end of the Q&A for the first time in months and months. I feel like I can actually get through this because they’re sort of understanding the process of how it all works.

And they’re armed with some tools to help them get in the right mindset know what questions they should ask, because a lot of people do find it quite daunting having a first meeting with a lawyer. You know, most people are not meeting with lawyers every single day, and they see the law as what they see on television, which is often criminal or corporate litigation cases in courtrooms. And it’s not really like that for family law.

And if you can have those conversations, they’d be really practical about what it is that you’re trying to get out of this and be in the right mindset when you first go to those conversations. I think it’s a really big part of it. And that’s where we sort of look at that holistic side of engaging, giving you content from psychologists, et cetera that can help you get into the right mindset. Before you go into those first conversations, either with your partner or even with your lawyer.

Kate Russell
What kind of language or tactics should people look out for in communications that they get either from their lawyer or perhaps their ex-partner’s lawyer that indicate that things might be on a path of escalation?

Perpetua Kish
I don’t really know if there’s any signs in a letter or in communications from the other party that things could be escalating. It more could be that things could potentially escalate if we don’t really take a step back and look at the impact of that communication moving forward.

So to give you a bit of a practical example, often I get a self-represented client who were self-represented, come to me and say, I just got this horrible letter from my ex’s new lawyer. And already it’s coloured their view of the process and of this lawyer on the other side and often of their ex. And I’ll go, okay, let me have a look at the letter. And I’ll have a look at the letter. And it will be a standard family law letter.

So it will include ‘Hi, we’ve received instructions to act for the party’s name,’ which in itself isn’t a great introduction because people don’t use that type of language that’s lawyer-speak. So already it’s sort of saying, okay, this is really official. Then they will ask for a whole heap of information, or they may give a little bit of summary of their client’s point of view, and often it’s very aligned or skewered in their client’s favour.

So already they’re saying, this is what my clients saying, and this. All the information we want from you. So the clients already felt like, oh, okay, I’m apparently in the wrong the other person’s in the right. And now I have to give up years and years worth of financial documentation. And just looking at that list is exhausting.

And then sadly, some lawyers also say after they’ve asked for all this information and noted their client’s position, oh, ‘by the way, if you don’t respond within 14 days or some other time period, we may have to commence proceedings at court.’

So that doesn’t necessarily mean a matter is escalating. I actually call it extremely lazy lawyering in that the lawyer has just gotten a precedent, a well-used precedent that has been used. I used to use them when I was a baby lawyer from their company precedent. And they’ve just populated it with a few client details put in their client’s position and then they’ve sent it off.

If that client didn’t come to see me and they went to see a more traditional lawyer, yes, that matter could then escalate and could end up in court. Instead, I helped my clients see the letter for what it is and to say, look, it’s just a letter. Let’s just give this lawyer the benefit of the doubt.

I can help them work through those feelings and say, okay, we don’t have to respond in the same way. We don’t have to respond with similar threats and demands. We can try and change the trajectory or change the narrative here. And often a good way to do that is to pick up the phone and call the lawyer and encourage them to work with us and say, okay, let’s look at what these parties need to do to be able to move forward. How can we move closer to resolution and have that purposeful discussion with them? And often that can help a lot.

And then on the flip side, when a client comes to see me, I’ll say, look, we could do all of these things that are the standard way to do things. We can write to the other party, tell them your position, asked for all this information, and then say if they don’t respond in a certain amount of time, there will be consequences. We can invite them to work with us. We can give them the information that you have about yourself that’s necessary to progress this property settlement and then say, here, I’ve provided it. Can you also provide yours, same stuff I’ve provided, can you provide yours?

And then we can put forward some potential solutions. If we’re not quite ready to start throwing offers around yet, we can say, well, why don’t we meet for a discussion or a mediation or here is this process called collaborative law, which is a team-based approach to settlement and just put some options forward and keep the tone very focused on the solutions and focused on moving forward and not getting stuck on problems and finger-pointing and elevating one’s position over the other.

Kate Russell
So you’re looking at changing some of those legal processes and avoiding the jargon and helping your clients reach a more amicable agreement that way?

Perpetua Kish
I think so. It does come down to shifting from what am I able to do? What is in my control to move this matter forward rather than expecting the other party to do all these things? What can we do to drive the direction to influence the journey.

Kate Russell
So, Angela, according to Money magazine, the average cost for a couple’s divorce if they go to court is $75,000. And there are cases that run a lot higher than that. How does The Separation Guide aim to help couples keep more of that asset pool to split between them rather than losing that money in legal fees?

Angela Harbinson
I think the main one is really to help understand the system. We have a lot of feedback of people going through our Q&A that they feel calm and having done the questionnaire itself, because it really helps you navigate the system and understand a lot of the facts you need to know about how to navigate it.
It does a few really important things. One that puts you and your ex on a level playing field with the information you’re receiving. So all the facts about the law and how they review your assets, the benefits of staying in a resolution mindset and taking care of your own health and wellbeing, and the importance of that.

Two, it really helps you understand and triage you to the right process. If you think about it, if you go into a hospital and you go to emergency with a headache, they’re not going to take you straight to the surgeon’s table. And that’s the equivalent of someone leading you straight to the courtroom. You’re not going to go there.

So the Q&A helps you really be understand the best process for your situation. So options like Pepe mentioned of mediation or collaborative law or what we call Guided Separation, they’re far more cost effective approaches to keep you away from that court system.
And the other thing it does, it helps connect you through to lawyers who have a focus on what Pepe and I have spoken about today. And that’s a focus around de-escalation, not trying to cause a fight just to increase their own fees, but actually to guide their clients to a mindset of resolution. From the beginning, we believe it is really important to get legal advice, and we arm you with the tools to be informed and to be ready to have those conversations with your lawyers.

And hopefully you’re put the hands of great lawyers like Pepe and others in our Network that are focused on that de-escalation and helping you get to that resolution as quickly and cost-effectively as possible.

Perpetua Kish
I just have a reflection, I guess, on the cost of Court, and why people end up there, perhaps when there are other alternatives. And look, there’s a few things tied up into this. I will admit that court can be lucrative, definitely for lawyers. They have billable hour structure. And lawyers can be motivated, sometimes subconsciously, to progress matters to Court because it can result in higher fees being brought into the firm.

Now that is a controversial thing, perhaps to say that lawyers are prioritising commercial aspects of litigation instead of what’s actually best for that family. And I don’t think that lawyers are consciously making that decision. It’s just something. It’s a process and that process is rewarded or taking that process is rewarded because of the commercial benefits.

Also, there’s this idea that something that I’ve seen, or I feel rather, is that for some practitioners, Court has become their comfort zone. They are so comfortable in that adversarial process. They are sometimes incredibly skilled advocates. That’s where lawyers feel more comfortable and that’s where they feel they’re doing their best work. And yes, some great work can be done in the courtroom, but we need to take a step back and look at what matters should be in court, and what matters can be resolved in a civil, amicable and non-advisorial way.

Angela Harbinson
I 100% agree with you, Pepe. I think it’s understanding also which matters deserve need to be in that courtroom environment because there are some that do need to go through that process. But there are a huge majority that don’t. So legal training, the nature of legal training is all about reviewing risks and contesting ideas and debating for a better outcome. And that’s how we’re trained in the legal profession to do that. But yeah, I think there is a real role for universities and law schools to educate on that process, and Pepe, you may be more familiar with what’s happening currently in those Law schools around it, but I think there’s a great place around escalation antics, as I say, and how we can actually educate on these better ways of getting people through.

Perpetua Kish
Absolutely agreed, Angela. And I think I reflect on when I was a young lawyer and I wanted to go to court, I thought that’s what being a lawyer is all about. People often think, well, if you’re a good arguer, if you like debating, if you aspire to be an advocate, that that correlates or equates to spending a lot of time in court. And I think, no, not necessarily. No, actually at all. It depends, again, that typical lawyer phrase, it depends. It depends on the case. And very often, as you said, Angela, most cases or many cases don’t need to go down that path.

Yet the family law framework is essentially we advise in the shadow of the court. So we’re already introducing in the courts or what would happen at court to everybody at the beginning. So we’re including it in the narrative rather than focusing on the more holistic or the bigger picture and all the other elements at play.

I said earlier, we need to give the law its place. We’ll put it in its place, and it should be there to help, not to hinder. So I think a good legal practitioner will recognise that, yes, the law has its place, and it’s able to communicate that to the client clearly comprehensively in giving that robust, essential legal advice, but also recognises that at the end of the day, it’s this person’s life, and they are the master of their own life, and they must remain accountable.
And a process that essentially takes that power away from them essentially says, well, this is what happened in these cases. And I might add there that the cases that go to court aren’t the success stories. They aren’t where people work together and they’re amicable and achieving good outcomes, either with or without some great legal counsel. The cases that go to court are the worst of the worst, sometimes the more complex ones, but often where people were simply unwilling or unable to reach an agreement.

So we’re elevating the status of those particular cases and saying to our clients, so that’s what we’re comparing ourselves to. I often tell my clients this and just challenge them because they’ll be like, oh, wow, I never realised that. Do we really want the yardstick to be the worst, the worst? I think lawyers need to really work on understanding that, well, yes, law and precedent is important, and it helps us. It definitely can help us, but it can also hinder us if we don’t remain true to that real multi-dimensional, holistic aspect of family law.

That makes it quite a little bit different. As Angela said, the emotional, the financial, we cannot elevate the law. We need to look at it, how it fits in with everything else, and make sure clients are the ones driving. We’re in the passenger seat, not the other way around.

Kate Russell
Clients obviously need to be really educated on the financial cost-benefit of going to court. It will cost money and what are you likely to receive, but also the emotional cost-benefit of going down that path. You may need to have an ongoing relationship with your ex, especially if there are children in the relationship. And Pepe, you said that separating parents relationships, they’re not over and they just change. So, what do you think is the cost to the relationship and the fallout to children when a case does go to court?

Perpetua Kish
I can actually give an example of a case that I worked on when I was quite new to family law. It was a very adversarial case. It ended up going all the way to a final hearing and it was in court for ten days. And it was a relocation case. So one party wanted to relocate. The other person wanted to stay in the city that they lived in. And it became a real battle. And the strategy that was employed was to suggest that the other parent was a worse parent than them or the other parent was a risk to the other, to the children.

After 10 days, yes, we got our result: the family were permitted to relocate. And the children were still quite young. And one might think that would be the end of it. But no, And while I heard from my colleagues and also from the client who touched base, they moved to another state, so they ended up engaging other lawyers in that state. They continued to litigate until those children turned 18 years old on every possible issue imaginable. So they argued about what high schools the children would go to, what extracurricular activities, what medical everything.

And it just brought me back to something that happened in the midst of that hearing. So during the course of the trial, the mother in that case have been cross-examined by a barrister, a barrister known to be quite combative. I think my clients referred to him as their shiny gun. And anyway, he just annihilated his mother in the witness box. And as I mentioned before, it was a ten-day trial. And we paused, and during that adjournment period, there was a tragedy that occurred, and the mother had been impacted directly by that tragedy.

And at the end of the last five days of the hearing, she actually had an outburst. She attacked our barrister and said to him that being cross-examined by him was worse than that tragedy that she had experienced in that adjournment period. And what ended up happening, of course, is that she never was really able to heal. And she held onto that anger. And that may have been why they continued to litigate, because that’s how it manifested. That’s how that anger and resentment and absolute hurt manifested. She would forget the faceless barrister after a few weeks.

But all of that anger and that hurt and that disappointment would have to go somewhere. It was simply transposed back to her ex. And that is, I think, really and that’s what actually caused me to shift my perspective on family law in court or family law manners in court and recognise the real damage to families and to people generally.

And that barrister, ironically, when he would go and see other clients, because the firm that I used to work for would always brief him and engage him, he would wear it like a badge of honor and actually use that example when trying to pitch for new clients to say, well, I was able to make someone break.
And is that really what we want to do? You might have a lot of anger and mistrust and hate, even towards your ex, but is that really what you want to do? And if you do that, you need to realise that there are going to be consequences.

As you said, Kate, if you’ve still got kids, you’re going to remain connected. That hurt, resentment and anger is going to continue to manifest. So what can we do differently to see an outcome that when the legals are all over and we’ve got our court orders and we’ve got our binding agreement, it’s actually done. And then we can move forward to heal rather than to continue to perpetuate this cycle of conflict.

Angela Harbinson
Stories like that, Pepe, really do help us understand just the long-term detriment of the Family Court and what can happen for people for many years in their life. One of my main drivers was a friend of mine. Her family had been through family court and it took for her almost dying before her parents could come together and sit in the same room together again. Now, thankfully, they are they have Christmases together, they do everything. But it was the process of the Family Court that actually tore them apart for so many years and caused so much pain to so many people.

Interestingly, too, we look a lot at the societal impact, not just, I guess, the cost to the family or the people that are going through the divorce, but there are also a lot of societal impacts and costs that are linked to people that have been through the Family Court system. And there’s known to be much higher cases of depression, of crime or suicide, generational separation, workplace productivity losses. There’s a huge number of things that are impacted when people are experiencing that Court system. And so we’re doing whatever we can to try and educate and guide people to avoid that process as much as they possibly can, and by empowering them with really solid information and to help them.

Kate Russell
Some of your ideas do go against the established way of doing things. And Pepe, you mentioned earlier that some people found your approach maybe a bit confronting or put them outside their comfort zone. Have either of you had any negative responses from people in the legal industry who are used to a more traditional model and maybe they don’t see the need for change?

Angela Harbinson
We see plenty of firms that are probably not aligned to our ethos because they see that we’re reducing their fees. And that’s really not what it’s about, but it’s about putting clients in the right hands of the right type of provider. Also, obviously, we’re providing a technology platform and technology is something that’s impacting lots and lots of different professions, and for the good.

I think technology has a huge place to play in changing the way we look at family law and any other profession. It has touched lots of different professions for the good and using the tools that are available to help streamline some of these matters and make the work when you are speaking with your lawyer, like Pepe has said today, all those valuable insights that they can guide you on the nuances of the law. That’s exactly the place for them to be doing that work. And let’s use technology to help and guide on some of the other aspects that can be done through machine learning or AI.

Kate Russell
How about you, Pepe? Have you had any reactions from people in the industry that perhaps don’t see the need for change?

Perpetua Kish
Well, I think the traditional model serves lawyers very well in terms of commercial aspects to it. So as I said before, litigation can be quite lucrative if a firm does litigation because many processes and there’s risks to manage, and there’s barristers to brief and there’s expert reports and all sorts of things. It creates a lot of work. It can create a sense of busyness. And when you feel busy, you can feel like you’re achieving things. So anything that sort of comes along and challenges something that to a lawyer they might feel is working well, it can be met with some resistance. I more or less found, though, that most people are overwhelmingly positive.

Definitely when we communicate it, if we go and speak about it, the reception is positive. Some perhaps look at us and think, oh, well, it’s a nice way to be. But the reality is that most people going through a separation are not going to be amenable to being kind and to being solution focused, so we’re just really giving them what they want. They’re giving the clients that robust, aggressive litigation, or lawyering rather, because they feel that that’s what clients want. And I would say that that’s a very short-term or short-sighted way of looking at things, because first of all, I think, yes, if you do meet a client and you tell them all of these things to arm them effectively with strong arguments and seeks to undermine or minimize the other person’s perspective, yes, that in the short term can feel really good.

And I certainly am guilty of that. As a junior practitioner, there is an element of finding all the positives in that client story and amplifying those and then the negatives, you just kind of like, okay, we’ll deal with those, but you amplify the positives. Or even if you are talking about the negatives and the risks, the client’s mind when they’re in that emotional turmoil, is going to grasp to those positives and then become quite attached to them. So, on the one hand, I think lawyers… it is a very short-sided view to be that traditional lawyers who gives the client what they want, the aggressive representation that can feel really good. It can feel like they’re fighting for me. That’s what I want. I want someone to fight for me.

There might be short-term benefits. You might scare someone into complying, you might get somebody to acquiesce because they just do a bit conflict-averse. But in the longer term, there’s all these other feelings going on there’s hurt, anger, disappointment, resentment. They’re still there. They haven’t been resolved in that process. They’ve just been probably put away to one side while the client or the other party on the other side is responding out of a place of fear and uncertainty.

But once matters resolve, then those feelings will rise to the surface and that will once again see the manifestation of conflict. It may not be a legal one anymore, but the conflict will be all ongoing. So I think traditional lawyers might argue and say, well, we still get outcomes, we still get results. But given that I’ve worked with so many clients who have been attracted to my particular firm’s, branding and ethos, often they’ve been through the process or in the midst of it, and they thought that that’s what they wanted, that aggressive approach. And then they realise, actually, I don’t like this anymore. I feel like the process is driving me rather than me driving the process.

Kate Russell
You both have experience outside the world of family law. So is there anything you’ve learned from professional experience in other sectors or other parts of the legal system that you think Family Law should adopt?

Angela Harbinson
I did start some of my career in professional services, in corporate law, but not as a lawyer. And one of the big things that I think, which is probably one of the main drivers for creating this, is around sitting in the shoes of your client, as Pepe spoke about earlier, and thinking about how they would like to receive this information. And yeah, I think we can really learn a lot from that.

Perpetua Kish
So I’ve worked previously in case management. I worked for the statutory child protection agency. I was thrown into case management, which essentially social work. And what I learned from that experience is as the case manager, I would be working with various other support services and putting together a case plan to help this family or this young person move forward. And I’ve drawn from that so much in my practice of law, it’s recognising what a family or a client needs. And then sometimes they know what that is. Sometimes they need a little bit of help and then identify any options, solutions and services that can help them to deal with some of those issues and those needs and those problems. So absolutely case management.

And then secondly, I actually was an actor, and I often pull this example of the time an acting coach said to me when we were practising monologues, and it was my turn to be in the centre of the room and I had to deliver a monologue and I had to cry and I wasn’t able to do it. And she said to me, you need to get over yourself. You need to get off yourself. It’s not about you. It’s the other person. It’s about reacting to the other person.

And often as lawyers, as clients, we’re often always focused on ourselves and how things might feel for us, what other people might be thinking about us. And when we’re doing that, we’re not actually really listening and engaged with what’s happening around us.

And so incredibly difficult thing to do once again, once you’re in the midst of conflict is to recognise, okay, I need to focus on the other person. But taking a few steps further back, it’s about recognising that you’re feeling that way, that you’re more likely to see everything that’s coming towards you as an attack, or you might be triggered by certain things that if you weren’t so stressed and unhappy, you wouldn’t be. It’s recognising how emotional and sensitive you might be now and how that could be impacting your reactions moving forward.

Kate Russell
Do you see your movements as disruptors of family law and the legal system, or do you think there is actually a growing appetite for change and you’re just early adopters of this kinder, client-centered approach?

Angela Harbinson
Look, I’m certainly very hopeful there is a movement for change. And certainly I believe the members in our Network believe there is a better way to do this and love hearing people like Pepe with that similar mindset. I think the Family Court system itself has put more of an emphasis on mediation and trying to focus more on that as well, which is really comforting to see. So, yeah, I’m positive that we are moving in the right direction. And ultimately what we’re after is really better outcomes for people as they experience separation and divorce. And it shouldn’t have that negative stigma attached to it. It should be something that you can move through and move into a different period of your life and hopefully be in a happier place than where you were when you’re in a relationship that wasn’t quite right.

Perpetua Kish
I hear the word disruption a lot these days, and I’m not looking to create a process or a way of doing things that competes or is distinct from the traditional way. I think the traditional way will always be there until something comes along that encourages all those traditional practitioners to go. Oh, okay. I might give that a go as well.

So it’s not about saying we’re better, smarter. This isn’t cleverer way to do things. It’s about putting the information out there and I guess walking in the talk, like making sure it’s not just a gimmick or a buzzword. Because so many law firms these days profess to be different. They profess to do all these different things. Alternative dispute resolution. No, it comes down to being a good human, remembering that lawyers are still human and not to forget the human element.

I think if we’re out there advocating for change for the sake of change, we’re not really going to get anywhere. Rather, I think the idea is to shift that focus not on change, but on improvement and on seeing better outcomes for families and particularly for children.

I’ve been able to see that happen through the way that we practice it at my firm and through the way that we practice within our movement, The Kind Lawyers, in that we really focus on that human element, and we humanise the law. We don’t try and separate the two as if they’re distinct from one another. No. We try and bring the human element back to law. And I think lawyers might feel a little bit uncomfortable. Some say, oh, that’s a bit too touchy fairly. That’s not my bag. That’s not what a lawyer is. The lawyer is there to argue the law, and it’s about facts. My old boss used to say, “I’m only interested in the facts.”

But if we only focus on the facts, I mean, what facts are we talking about? Two sides to every story, and we’re only going to get a very black and white, very dull picture. There’s so much colour, there’s so much vibrancy, there’s so much energy when we focus on the human element. And I think rather than saying your way is wrong, our way is right, I think focusing on creating a beautiful tapestry that is just so compelling, it draws people to you and it helps people to recognise, okay, this is actually a better way or the right way of their own volition, not because they’ve been told, but because that’s their experience.

Kate Russell
Pepe and Angela, thank you so much for joining me today.

Angela Harbinson
Thanks, Kate.

Perpetua Kish
Thank you for having us. Kate.

Kate Russell
That was Angela Harbinson and Perpetua Kish. To hear more about Pepe’s approach, I recommend you follow her on Linkedin. She’s a really active contributor to this discussion on the platform.

If you’d like to learn more about your options in separation, or you want to be put in touch with professionals to help guide you through, please go to theseparationguide.com.au and complete our 3-minute interactive Q&A, or check out our other podcasts and blogs. If you’ve found the information today useful, please subscribe, share and leave us a review. It’s a great way to help our podcast reach others going through separation.

In the spirit of reconciliation, The Separation Guide acknowledges the traditional custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their elders past and present and extend that respect to all Aboriginal and Torres Strait Islander peoples today.