Listen: How to keep your separation or divorce out of the Courts

Do I need to go through the family court to get divorced?

Jack:
Good day, it’s Jack Whelan again here. Barrister and Mediator. I’m again on the sunny Central Coast for The Separation Guide podcast number two. And we’re at the offices of Aubrey Brown and I’m joined by Anna Cruikshank, managing director of Aubrey Brown, good day Anna.

Anna:
Hi, how are you Jack?

Jack:
Terrific, terrific. Thanks again for joining us and thank you very much for your firm being a part of The Separation Guide network on the Central Coast, it’s terrific.

Anna:
It’s our pleasure and we’re very excited to be involved. We think that it is such an innovative service to be able to offer the community and our fellow law clients.

Jack:
Thanks and it is terrific, and again your firm’s reputation is one of having long, long relationships with clients, long trusted relationships and that’s what The Separation Guide’s about as well, it’s about trust. And also joining us is Kate O’Grady. Kate is the team leader in matters of family law at Aubrey Brown. Kate, thanks very much for joining us.

Kate:
You’re very welcome Jack. Nice to meet you.

Jack:
And you as well. All right, so we’ve got a fairly profound question before us friends, and Kate or Anna, whoever wants to go first certainly can. Question is, from your perspectives as expert family lawyers, how do people divorce or separate well? What do they need to do in order to achieve that?

Kate:
I might jump in Anna, if that’s okay with you. It’s actually an excellent question and I think it’s one that after being in practice for as long as I have, I’m starting to turn my mind to more regularly. And I think it’s about the profession as a whole and certainly clients changing our mindset and the way that we approach family law matters. And just thinking about the process a little differently. For too long, I think there’s been a focus on litigation and an adversarial process when people come in and put their gloves on and come in swinging. And we’re seeing the effect of that on families and our clients and particularly the cost and the emotional cost for clients. So I think approaching it from the outset with a different mindset of how can we sort this out, and even if that means a compromise or accepting things that might not be exactly what the parties want, but looking at ways to resolve it in a cost effective way, but also in a holistic way, I think is a great style.

Jack:
How entrenched, Kate do you think is that mindset in the family law field? That mindset, and you see a lot of it in advertising, but the whole kind of we fight proposition. Plainly, sometimes you have to have a fight, sometimes you don’t. One of the implications of starting from that point of view is that you are in an escalation. So whilst it’s plainly not a homogenous sector and circumstances are very different, how prevalent do you think that adversarial mindset is?

Kate:
I think unfortunately it is very prevalent. There has been a shift, certainly with alternative dispute resolution becoming more popular and pushes by the court to force people into mediation and alternative dispute resolution. It is changing, but it’s still a slow change and I think we’ve still got a long way to go and I think lawyers have an important role to play in that process because often we are the first point of call for clients and if we approach the matter in a completely litigious and adversarial way, I think we’re doing our clients a disservice.

How going through the family court can affect your divorce

Jack:
Okay. Anna what can be the consequences from your experience of approaching things, in your observation, in approaching things from that adversarial point of view, what can be the consequences for a client?

Anna:
Look, one of the biggest and most obvious consequences is the cost element. Often in family law people don’t have a lot of money in the pool to be arguing, and to be arguing and spending it on legal fees is not in the best interests of either of them or their family. But there’s also a huge emotional toll that can flow from taking an adversarial approach. And that emotional toll can have long lasting effects on the family dynamic and the relationship between the parties, particularly where there are children involved. So looking at alternative ways to come to a resolution is really important to assist people with that long-term relationship aspect that’s often very important in family law separations.

Jack:
You must have seen examples of, say a pool of assets that was a little over a million dollars with legal fees also getting into the six figure, right?

Anna:
Absolutely.

Jack:
You must see that from time to time.

Anna:
Oh look, we do and we often see people come in with a pool of assets of $100,000 and for them being able to move forward with their life and their relationship, it’s really important that that pool of assets is split between them with integrity and in a fair and equitable way. And it’s heartbreaking to see so much of it spent on legal fees.

Jack:
As lawyers, you’ll be bound by your instructions. Plainly, in this environment, often people can be thinking straight, sometimes they can be thinking not so straight. In circumstances where you might detect that it may not be in someone’s best interest, for example, to really escalate. How do you approach that, given the clients at that moment, their particular mindset?

Kate:
I mean each case is different and I think part of our job is to assess where clients are at in their particular stage of the separation journey, including their emotional mindset and making referrals to third parties such as counselors or psychologists when you need to, if you think that people need assistance before they can progress. Because the reality is that some people are just simply not in a position to be able to progress the matter forward until they get some assistance to deal with the breakdown of their relationship. And it can be really beneficial to refer them out at an early stage to get that help before they go ahead, so that they can come into it with a clear mindset.

But also it’s our job to be able to identify whether their proposal is realistic or what the motivation might be behind it. And unfortunately due to the nature of a lot of the separations, people approach it from a position of hurt. They’re betrayed, they feel let down by the other person or they might be angry, and they might want to try and hurt the other person or seek revenge. And unfortunately none of those things will end well for either party if the matter progressed in that way.

So we have a duty to our clients, I think to reality test their proposal and to give them realistic advice about what’s likely to happen, what their entitlements are. There’s a lot of lawyers out there that will say you’re entitled to 75-80% and then off they go to court only to be told by the judge that they’re entitled to 50% and so I’d hate to be the lawyer in that situation when the client is looking at you from the bar table having just spent tens of thousands of dollars to get to a stage where they’re being told that their proposal is unrealistic. So whilst yes, we’re bound to follow the clients instructions to a certain extent, it’s also our job to make sure that they’re reality testing their proposals, they’re given clear and accurate advice and pursuing options to resolve the matter without litigation I think is really important.

Jack:
Anna, Kate has just mentioned this idea of reality testing. A lot of people would not be familiar with that. Can you explain what that is?

Anna:
Sure, Jack. So reality testing is looking at, in real life whether the proposal that parties understand they’re agreeing to can actually be put into effect. So an example would be one party agreeing to buy the other party out of the marital property. But if they can’t refinance the loan and borrow the money because they don’t have the income to support the loan application, that agreement’s going to fail when they move to executing it. So it’s really important when the parties are looking at how they might move forward, that they’re getting really good advice as to the reality of their ability to make that agreement come into force.

Jack:
And that’s reality testing of options and of advice and helping people to reality test their own thought processes and their own decisions. That’s something which presumably is a tool of trade for yourselves here at Aubrey Brown?

Anna:
Absolutely. We see that as a fundamental part of what we assist our clients with. Taking them through the way in which they’re going to need to manage the agreement before the agreement’s actually finalized between the parties.

Debunking divorce myths

Jack:
I suppose also, Kate, because most of us aren’t legally trained, not many people are legally trained – well there’s plenty of bush lawyers out there and plenty of people who’ve gone through the experience – and so it seems to me that it’s often the case that people can be living under misapprehensions. Yes, you will get 80% of the assets-

Kate:
Yeah you hear “You’ve got the kids, so you automatically get another 10%.” Or “My friend got 70%.”

Jack:
All this sort of folklore and myths and so forth. When you’re first meeting with people, how much time can be spent on dispelling those sorts of myths? It seems to me there must be an element of education.

Kate:
Absolutely.

Jack:
As well as advising.

Kate:
Absolutely. I mean initially I think it’s really important to give people the chance to be heard so that they feel like they’ve had the opportunity to tell their story. I’m not someone that would rush someone through an initial conference, so I let them tell their story and let them get the emotion out. Because it is a really emotional process and often we try and put them into a little box where we say that’s not relevant, but to them it is really relevant to what’s happened and how their relationship has broken down.

But then once they’ve had the opportunity to tell their story and to share how they’re feeling, then the next stage is then giving them realistic advice and dispelling some of those myths that they might’ve heard about what friends might have been through or what family members … It’s often friends and family in the background that are pushing them, you know, ‘she cheated’ or ‘he cheated, so you should go for everything’. And those really cut throat approaches to it is often caused by people in the backgrounds, and if you can try and separate people from those myths and from the external pressures, it can be really helpful to try and get them to focus on a realistic approach to it.

Anna:
And I think it’s really important to recognize that every case turns on its own facts. Every case is different and things can make a huge difference in terms of what people are entitled to or how people might move forward. So there is a danger in clients putting too much into advice that they get from people based on other people’s experiences because those little nuances in terms of what had happened can make a really big difference to how things might move forward.

Jack:
Yeah. Yeah. Anna, first you and then to Kate with the inverse of my question, and it’s from your perspective, from say start to finish, as best as you can with all of your expertise. What is a separation or divorce, which goes well, what does that look like? What are the elements of that? And then to you Kate, what are the elements of a separation or divorce going off the rails?

So let’s start with how, if you like for want of a better term, a well done separation or divorce actually takes place. Obviously there are externalities, and it depends on the circumstances, but assume for a moment that the circumstances are such that it could go well. What are the elements of it going well?

Anna:
Look I think that the first very important element is that both of the parties have realistic expectations. Both of the parties have managed the emotional aspect of the separation so that they’re able to explore a way forward. I think that both of the parties maintaining an element of respect for each other and a desire to have a relationship past the separation issues being sorted out. Those things all assist with the parties being able to communicate in a respectful way and in a way where they’re realistic about what each of them is entitled to and how it moves forward. I think that communication is the number one element that drives whether a separation is dealt with in a sensible way that gets the best outcome for the parties or whether it goes off the rails. And ideally if the parties can come to an agreement themselves, I feel that they walk away with a bit more acceptance of the outcome, than the alternative, which is having a judge impose something on them that neither party’s happy with at the end of the day.

What is divorcing through the court like?

Jack:
Is that something that you think people fully understand, what it’s actually like that moment when you enter a courtroom?

Anna:
Absolutely not. Even as lawyers, going into the witness box is a terrifying prospect. I think that that’s why so many matters settle on the day, on the courtroom steps because that’s when the reality of it all really hits. The concept of being cross examined by barristers, and having your credibility challenged. I don’t think people really understand it until they’re about to step into that situation. Just how traumatic and emotional that experience can be.

Jack:
Kate that’s a good lead into your part of the question. What does this going pear-shaped look like from your perspective?

Kate:
Yeah, well just leading on from what Anna said, something that I often say to clients when they tell me that they want to go to a final hearing or they want a judge to decide, is that it’s very hard to ever come back from cross examination. If your ex partner has been in the witness box and your barrister has completely destroyed their credibility and put every single issue, and tried to attack them and you then have to try and co-parent with that person after that day – it’s almost impossible. It’s very hard to try and salvage a co-parenting relationship after that point. So I try and really encourage people to avoid that where you can, obviously sometimes you can’t do that and you do need a judge to decide.

But I think often matters go off the rails quite early on and I think one of the biggest problems is people not getting good legal advice or getting unrealistic legal advice that can then steer them on a path towards litigation too early. I know that there are a lot of lawyers that will just as a matter of course, commence proceedings without even trying to exchange disclosure or trying to engage in mediation or trying to resolve it between the parties. They’ll just file the application with the court straight away. And I just don’t think that that is assisting. The courts are already completely under resourced and overwhelmed. So I think we need to look at different models.

So the key things that cause matters to go off the rails in my view, are where parties approach it with a really entrenched view of fighting. So they’re coming with an agenda, so they want to hurt the other person or they feel hurt or betrayed. And it’s that not being managed from the breakdown of the relationship, those emotional aspects not being managed, not getting proper legal advice, not being open with their communication. What Anna said earlier, communication is key.

So if you try and hide things, if you don’t make full disclosure, if you try and hide assets, if you try and hide money or if you try and cover up things that have happened with the kids, it will come out eventually, and it will impact your credibility. That draws the matter out, it adds to the cost and it will create a level of mistrust that makes it hard for the other person to then engage in the negotiation or reach an agreement.

So I think having clear communication, being open and honest in terms of disclosure, getting good legal advice, engaging in alternative dispute resolution and trying to reach an agreement. It’s very hard for parties to try and live with an order made by a judge. The judge doesn’t know you and your family, the judge doesn’t know the intricacies of the way that your family works, your routine, even in the way that your lawyer does. And often parties end up with orders that are completely unworkable. So if they’re actually involved in the process of negotiating that agreement themselves and have had some involvement in saying this is what I want and this is why, it’s always going to be so much better at the end of the day for them and their children, if they’ve been involved in that.

Jack:
So I feel in part it’s a design question isn’t it? You can, with your partner in the right environment, or your ex-partner, design the next stage of your life or someone else can do it for you.

Kate:
Absolutely.

Jack:
Yeah and plainly in some circumstances you might need someone else to do it for you, but because the reality is that if we can alter things ourselves they’re more likely to bind. I suppose that’s one of the benefits of settling before you end up in court. Just on this point of escalation, a question to you both Anna and Kate. What would be a typical reaction to a – in the scenario which you just referenced Kate – a letter being fired off early, seeking something which could have been sorted perhaps in conversation. I’m talking here about potential for an escalation cycle to be commenced and the unintended consequences of that initial communication not being right?

Kate:
Well often clients come in having…

Jack:
That was a leading question for you, sorry.

Kate:
Well often clients come in having received a letter from a lawyer; A) that they don’t understand, but B) that they’ve already got their back up about and has put them on a particular course of action, which could have been easily avoided if those parties had just simply had a conversation or if the lawyer had taken a different approach in the way that they write.

So often the first letter, the first letter is so important and it should be about trying to engage the other party in a negotiation. It shouldn’t be about starting a war with that first letter. You don’t want to try and frighten someone or try and get their back up because that’s not going to help resolve the dispute. And too often that’s what happens, and I think if people don’t understand; they see a lawyers name and they automatically think that they’re in a war and they have to fight, and that’s the response. They come back fighting.

Jack:
Okay, so you end up with reciprocity. Yeah Anna.

Anna:
Well, I think that as a profession we as lawyers need to be really, really conscious of the power of language and the power of words and be really responsible with how we use them. Because communicating in a really legalistic way can have unintended consequences and can derail a matter that otherwise might have been easily resolved with some communication between the parties.

Jack:
How often does that happen?

Anna:
Look, it happens all the time and it happens not just in a family law context, but in all of the areas of law that we practice where the first part of speaking to our clients – when we receive some correspondence – involves now ‘I want you to look past the tone of the correspondence’. Let’s have a look at what they’re actually communicating to us. That’s the conversation I have day in and day out with clients, because they will just get offended. They don’t understand the legal principles, they don’t understand the offer, but they understand that somebody is being disrespectful to them. And as Kate said, they want to fight back when sometimes if you can move past that, and sometimes I’ll pick up the phone and say to the other practitioner, come on, can we just back this off a bit because we’ve got a real chance here to sort this out and make a real difference for these people.

Jack:
And is there a fraternity of legal practitioners who are of that mindset, do you think that fraternity’s growing?

Anna:
Look, I think certainly as a profession I’m seeing a huge shift towards non-adversarial resolution of disputes and a huge shift towards using alternative dispute resolution processes early on in matters to try and move things forward. We regularly encourage our clients where it’s appropriate, to just sit around the table with the lawyers and let’s just all have a chat.

Jack:
In respect of escalation and avoiding that or managing that, it seems to me Anna, that there’s a lot of trade trust in that for lawyers because obviously you want to give strong representation, but the question is at what point is that strong representation in or not in the client’s interest, and so a lot turns on that.

Anna:
That’s right.

Jack:
What are your comments on that?

Anna:
Look, I think that your client needs to feel that you are there with them, that you are there to support them and you’re there to represent their best interests. I think that the starting point for us is managing our client’s expectations so that our clients have realistic expectations of what can and can’t be achieved or what they’re entitled to. And if we’re managing our client’s expectations well, and also managing ourselves to try not to get caught up in the drama. Because often when your client’s really emotional, we feel a strong attachment to them and we really feel for what they’re experiencing. So I think we need to manage ourselves around being the sense, the voice of reason and being able to guide our clients. But also we can communicate professionally, we can communicate strongly on what’s important, but we can do it in such a way so that it’s not accusatory, it’s not disrespectful and it’s not derogatory to the other party.

Jack:
Kate?

Kate:
I agree exactly with what Anna said, I think it’s really important for us to support clients, to listen to them, to guide them through the process, to make sure they understand the process and to explain things in a way that they can understand. And I think that’s a key issue and I often say to clients, it’s almost like I’m trying to teach them another language because when you know the law, it’s like I know French and they don’t, so I have to try and break it down and explain it in a way that’s really easy for them to understand.

The unknowns of divorce

Jack:
Just on that, what are some unknown, unknowns for people? Terms? Concepts? You must see this a lot. The first time for example, you might mention a pool of assets. Will people say look what does that mean?

Kate:
Most people’s understanding of a pool is a swimming pool in the backyard, I dare say most people.

Jack:
Well funnily enough that might form part of their pool.

Kate:
But I think we take for granted and often just assume that people are going to have an understanding or knowledge of a lot of words and terminology that we use that they just simply don’t.

So you just have to come back to basics and assume that people know nothing about the system, about the courts. I mean just the fact that we have two different courts in the same building, applying the same legislation is so confusing for people to try and understand. The concept of disclosure, I mean we use that, I use that so many times throughout the day and yet how often in ordinary life would people talk about duty of disclosure? So I mean it’s just being able to help people understand those basic terms, but also how standard a lot of the processes are. That it’s nothing to be frightened or worried about. There are processes that the court puts in place that need to be followed to make sure the outcome’s fair, that we still follow in a process of negotiation. So it’s nothing to be frightened about that they’ve asked for certain information or bank statements or documents about your financial circumstances. This is a proper process that we have to follow and understand that it’s not just in your matter, you’re not being attacked.

So just being able to explain that and put people’s minds at ease, that there is a process to be followed, there are rules that we have to comply with and just making sure that they understand each stage of the process can really help. Otherwise, if you just say, just meet me at court and they have no idea what to expect when they walk into the courtroom. I think it really helps to walk people through what it’s going to look like. Where will the judge be sitting? What are they going to say to you? You know, what do you say? What do you wear? Even just going back to those really basic things, I mean most people have never set foot inside a courtroom before and it can be really intimidating.

Jack:
It’s interesting, isn’t it? As far as how people can come in with some unknown, unknowns. Legal practitioners, because you’re so in it all the time, it’s possible to also lose awareness of how much you know relative to how much the other person does not. I suppose that goes to being good at what you guys do, is having that knowledge and that awareness to be able to share information in a way which is easily consumed.

Kate and Anna, thank you so much. Yeah time to come to an end. Hopefully, and I’m quite confident, that there’s just so much useful, practical information on the podcast to people who are going through separation and divorce. But thanks again, Anna and Kate, and thanks again to Aubrey Brown for being a part of The Separation Guide network.

Anna:
Thank you so much Jack.

Kate:
Thanks Jack.