Client Story – Trying to Go the Collaborative Route

(We’ll call this client Mandy, to protect her identity)

In 2006 I finally asked my husband of 23 years for a divorce. Earlier in 1995 we had separated physically and financially with orders as to a property settlement being filed in the Family Law Court. As a woman, this gave me a sense of security knowing that I finally had something of my own and I could get on with my life and raise our three young children. As parents, we were managing access and custody arrangements with only minimal manipulative practices employed by the father. I was represented by a young female lawyer, who would after our case wrapped up, be offered a judicial position as a Registrar of the Family Court.

At around the four-month mark (post separation) the ex-entered into a program of rehabilitation and signalled his willingness to reunite the family – all going well with his progress. This reunification of the family unit seemed like a positive step so we did a ‘geographical’, locating ourselves in a rural environment where the children thrived. Unfortunately, the program of rehabilitation was ditched soon after and slowly old habits began to resurface. I felt more stuck than ever having, only recently, attained a sense of independence and freedom. However, I vowed (to myself) to stick it out until the children had finished their schooling. That was the beginning of the eleven years Cold War. It was a difficult challenge. Forgiveness was a weekly ritual practised by me and the children.

Now back in the new millennium complications arose when the ex, who practices law, found a solicitor who would act as a ‘shopfront’ for his vicious attacks on me, my family and my solicitor. Initially, we consulted barristers who could mediate our present predicament. Apparently, the ex-told me, you could only have ‘one bite of the cherry’ when it comes to property settlements. Therefore, the orders which took effect in 1995 had to stand unless the parties, who had never divorced (us), consented to set them aside.

This was a huge loophole which my ex-drove through and used to his advantage. During mediation, he declared to the Registrar and all legal representatives present, that he did not recognise the Family Law Court (at that time it was a place in which he did not practice law) and so commenced proceedings in the Supreme Court. Even though we had put our marriage, lives and finances back together – our circumstances had significantly improved over the course of our marriage; I was reoffered the original settlement sum. This was grossly unfair and after battling out these circumstances in three separate jurisdictions, I was vindicated.

Hardly a collaborative approach. The previous order was set aside, and the judge awarded a settlement of 65 % of the total assets of the marriage to me. Unfortunately, those assets were never forensically assessed. I was so worn down by this time that I agreed to whatever was proposed. My only aim was to be free of the tyranny of marriage (my observation) and to live comfortably into old age. My ex now has two million dollar homes, a thriving legal practice and his boat. I am remarried and happy. He is not.

We both suffered terribly during the divorce proceedings because his self-driven legal advice imposed obligations on us to engage legal representation at great cost to our wallets and health. If it were not for my aged parents I would not have been able to pay the ongoing expenses which accumulated. I would have been on the streets. My legal fees were in excess of $200,000. The pool of assets was considerable however this was not money well spent.

Initially, the lawyers attempted a collaborative approach. Advice on both sides was to set aside the previous order and take a look at the current asset pool. He sacked his lawyer and as I said previously, went in search of one who he could take a positional stand in his favour. He wanted a fight and was prepared to do anything to win. His chosen solicitor facilitated his battles, even though advice from the legal fraternity (those canvassed) confirmed that they were both wrong. We were a test case. A precedent needed to be established to clarify the law for the next poor unfortunates who found their marriages in the same state as our own.

I learned many things about people and the law. If your lawyers agree, listen to them. They are not selling you out. They are applying the written law based on the facts of your situation; based on the information at hand – disclosure is essential – the requisite forms are easy to access. The importance of giving clear instructions is vital. However, the Family Law Court is the only jurisdiction where the parties on either side have a more intimate knowledge of the opposing party than in any other jurisdiction. Seriously, the lawyers only want a fair and equitable outcome for both parties because for them it also gets messy – emotionally and practically. They are legal professional(s) not counsellors. Remember the law deals with facts and not emotions and whilst many practitioners have the compassion to hold your hand through such a difficult time, that is not their role. To state the obvious; not using a collaborative approach to family law comes at a great cost.