July 2013 Issue 84

Family Law…depressing?

B2B Editor1 July 2013

How many times has this happened to you, you’re at a party with people that you are meeting for the first time, or you are having a quiet after work drink and you meet someone new, or your new hairdresser is making polite conversation with you, or you are even standing in line at the supermarket making small talk with the person next to you, and you are asked the question “so, what do you do?”

In a town such as Canberra where a significant percentage of the population work for the government, and people do have fascinating jobs, it’s a question I get asked when meeting someone new (sometimes even before I get asked what my name is) almost daily.

What do I do? …I’m a Family Lawyer. This is how that conversation usually goes for me:

Newly introduced Person X: So, what do you do?

Me: Well, I am a Collaborative Family Lawyer.

I then watch as Newly Introduced Person X contemplates this. Usually there is a small pause and then a look of slight puzzlement, which is followed by “wow. Isn’t it hard? That must be so depressing”.

Sure, people’s automatic reaction to family law is that it is depressing and messy and traumatic. And of course I am not pretending that it cannot be. The Family Court has been referred to by one particularly astute observer as “the Court where they shot the survivor”.

Of course there will always be a need for Court intervention in some family law cases. However, as a Collaborative Family Lawyer I have seen that family law can also be about rebuilding relationships and separating couples working together for the good of their children, which serves them well in the years to come as they will inevitably see each other at birthdays, graduations, weddings and other important milestones.

Collaboration is a process whereby both parties and their lawyers agree not to go to Court. In fact, the parties and their lawyers sign a contact saying that they will not go to Court and instead of employing lawyers to fight for them in Court they are employing their lawyers to help them reach a settlement.

It is a process whereby instead of focusing only on what your legal rights are and what you can do to ‘screw the other party over’, it focuses on your interests and goals. It is also a process whereby solutions can be achieved which are, unlike what a Court often orders, not zero sum solutions.

For example, in a recent Collaboration the parties’ main non-superannuation asset was a house which the wife was living in with the two school aged children. In this case both parties had significant superannuation entitlements. Both parties agreed that the Wife should keep the house because it was important to both parties that the children not be enquired to move until they finished school. However, the Wife would need to make a payment to the Husband in exchange for the transfer of the home to her name. The problem was that the Wife did not have enough borrowing capacity to pay the Husband out.

If this matter was being adjudicated before the Court, it is likely that the house would need to be sold. However, because the parties had agreed to settle their matters via Collaboration, they had many more options available to them that would not have been what a Court would likely have ordered.

In this case the Wife was 35 years old and therefore would not be able to access her superannuation entitlement for some time. However the Husband was nearing the age of retirement, and therefore the age when he could access superannuation. Therefore, it was agreed that a larger share of the Wife’s superannuation would be split to the Husband in exchange for less of a cash payment to the Husband from the Wife. And the Wife would therefore be able to keep the house.

By working together in a Collaborative space the Husband and the Wife were able to increase the amount of assets available for distribution now by splitting the superannuation into the Husband’s name. Ultimately, an outcome such as this where the parties were not faced with telling the children that they would have to move (and Mum probably blaming Dad, and Dad probably blaming Mum), but instead were able to tell the children “Mum and Dad worked together to ensure that everyone is looked after” has provided this couple with a solid basis to work together in the future to co-parent the children. So, in short the answer is ‘no’, it’s not depressing…but maybe I should work on my spiel…Its hard to sum this up at a cocktail party…

For Family Law Advice contact

Farrar Gesini Dunn

Level 5, Colonial , Mutual Building

17-21 University Avenue, Canberra City ACT

P (02) 6257 6477 | F (02) 6257 4382

E [email protected] | www.fgd.com.au