Australia: 3 myths about what family lawyers can do about separation explained

So often I spend much of my first meeting with a client addressing various misconceptions they have: misconceptions about the law, misconceptions about how difficult it will be resolve matters and misconceptions about engaging a lawyer to help them.

I thought it would be helpful to address some of the common questions I get when meeting with a client for the first time, because I know a lot of people wonder about these topics when considering separation.

SEEING A LAWYER MEANS I HAVE TO GO TO COURT

NOT TRUE.

In practice, save for circumstances of genuine urgency, court should always be the last option. The adversarial process of litigation does nothing to promote communication between couples and worse (in my view), takes control of the outcome away from the only people who know what will really work best for their family; they are the very people who then have to somehow make the orders that are imposed on them by the court work, all day, every day.

As someone who enjoys being in control of the decisions she makes about her life (or those decisions I choose not to make), I cannot understand why anyone would want to hand control over decisions about their life or their children to a judge who doesn't know them or their family. I do understand there are circumstances in families where court intervention cannot be avoided, but they are the exception and not the rule.

Litigation can be a way to finally resolve a protracted dispute; but it doesn't suit every family and it can come at great cost, both financially and emotionally.

Can you imagine having to attend events for your children together and be civil in the presence of someone who, at court under cross examination, called you a liar or accused you of bashing them?

While we have the experience to help you through court proceedings if that is what is best for your matter, negotiation, mediation and resolution of disputes away from court is always our preference.

ONCE I SEE A LAWYER ALL THEY WANT TO DO IS ARGUE

NOT TRUE.

Reducing conflict, focussing on resolving disputes in a practical way and putting people in touch with other professionals who can help them manage communication and the stress of co-parenting is an essential part of our practice. Good lawyers are outcome focused – if you feel trapped in a situation your lawyer should be able to help identify the best way to try and finally resolve any conflict.

It is a necessary part of my work to write letters to other lawyers and sometimes to other parties directly. Working with people to make sure that communication is helpful to their matter is key to progressing settlement in an amicable way.

Where possible, I encourage people to communicate directly with their former partner about issues regarding the children or payment of joint expenses. In my experience, this helps them to feel connected to the issues they are trying to resolve and can result in some really creative solutions.

Where it simply isn't possible for direct communication after separation, which may be the case on account of safety concerns for parents or children, mental health issues or substance abuse, then communication from your lawyer should be helpful to moving your matter to a resolution. Your lawyer should be your advocate who helps move your matter towards a resolution, not simply someone who simply writes what you say without giving you guidance about what will actually be effective for you.

IF I SEE A COUNSELLOR MY PARTNER WILL USE IT AGAINST ME

NOT TRUE.

The worst thing you can do as someone experiencing separation is to isolate yourself from support. That support may be from family and friends or from a counsellor or psychologist.

While my unhealthy obsession with reality tv shows means I fancy myself as an amateur psychologist, I would never suggest to anyone I have the requisite skills to help them develop emotional strategies to cope with the pressure of separation and co-parenting.

I trust the counsellors and psychologists who work with our clients will give them those strategies and tips to structure communication with their former partner in a positive way.

Why is that important? Because when communication is positive, people feel better equipped to negotiate a settlement and the potential for children to be exposed to conflict between their parents is reduced.

It can be challenging negotiating settlement and often you lose sight of the emotional impact of ongoing conflict. A counsellor can help you focus on the positives in your life and to look ahead to the moments you are yet to experience; think weddings, christenings, grandchildren's birthday parties. Sometimes, people can get locked in conflict almost out of habit. When they realise that being able to share the lovely family moments yet to come with their former partner and family without lingering feelings of resentment and anger is worth more than conflict, people usually find a way to resolve matters. It isn't always easy, but a counsellor or psychologist can help.

A counsellor or a psychologist who can help you identify your motivations in any settlement negotiations and the emotional road blocks that may be stopping you moving forward, can make a big difference to how you deal with separation.

SO, WHAT CAN YOU REALLY OFFER ME AS A LAWYER?

In a nutshell, knowledge, wisdom and a sense of certainty.

I don't know about you, but when I have to make a difficult decision, I like to have as much information as possible available to me.

I like to understand the potential outcomes, both positive and negative, the costs (if any), how long a process might take, where I can go if things don't go the way I planned, and what other information I need before I can be sure about what to do.

When I can get information like that to people experiencing separation, you can literally see some of the weight they have been carrying lift from their shoulders in front of you.

I am not suggesting I have a magic wand and can fix everyone's problems. There is no denying the issues that arise when couples and families separate are complex.

What I can do though, as your family lawyer, is give you an understanding about what to expect from separation and all of the ways available to you to try and resolve any disputes that may arise.

I then help you to make a plan around the issues you are most concerned about; for example, how to physically separate from your partner, how to protect your safety, how to help your children cope with the separation, how to communicate with your former partner, particularly when emotions are high.

I can also help you prepare for court where negotiation has failed, or, where you need urgent assistance in relation to your children's safety or protecting assets.

Thomas Jefferson once equated knowledge with power, safety and happiness.

By sharing what I know about:

  1. the legal processes of separation and what to expect;
  2. accessing practical support from other professionals to make sure you can cope emotionally with separation;
  3. the many options available to clients to resolve disputes and avoid court,

my aim is to help clients feel empowered about their separation.

I want them to feel they can make decisions safely, knowing all the options available to them, and that they have one eye on the future and the understanding they can be happy again.

So, if you are spending your quiet moments after Easter wondering how you'll get through another school holiday period, or realising you want to separate from your partner, don't feel as if you have to make those decisions without the benefit of knowledge.

Please get in touch to make an appointment to talk through the issues you are experiencing and what options are available to you, to make this year a better year for you.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

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