I first met Dave when we played cricket together in Brisbane.

Dave had come down from the country. He was a talented and skilled player. With his batting, he could turn a match on its head. He could take the impossible catch – he was a natural.

Dave was waiting to join the armed forces. He was too young to join when I first met him so filling in his time meant a job and sport on the week-ends. All things sport drove him. He bemoaned leaving school – he hadn’t taken to school work much but he did appreciate his hard-working teachers and the unlimited time they seemed to have to arrange sporting events.

After a couple of cricket seasons Dave was still on the team. When I quizzed him about not leaving to join the armed forces he would mutter something about the courses he was doing – they might lead somewhere – they might provide another option. The courses were factual but probably the real reason for the delay was that Dave had met this girl called Alicia – sly old fox had kept it all a secret from his teammates.

Dave had a big part in winning a couple of cricket finals and he did actually finish his accounting degree. More importantly, he did marry that girl and they moved back to the country. Not that far from Brisbane that we could not keep in regular contact.

Time moved on and along came a couple of children and so did Dave’s own business.

Things looked pretty good for Dave and Alicia. They had a great lifestyle, overseas travel and Dave had a reputation for providing quality professional services.

About 20 years after Dave and Alicia got married, I had a call from Dave asking if we could catch up the next time I was down his way. Sure, not a problem I would look forward to it.

A little while later Dave and I did catch up. Far from the happy knock about Dave of the past, I found a confused and disappointed Dave. The marriage was not going well – Alicia had embarked on a life of travel, usually solo because she wanted more out of life than being Dave’s support and a stay at home mother. The things that Alicia had so desperately wanted no longer fit the bill.

Dave and Alicia still lived together but they both appeared to have other partner interests.

Dave wanted to make a clean breast of all of this. He wanted to move on, his unhappiness was palpable.

Dave’s questions left no doubt that the marriage was over. He was prepared to walk with nothing, he just wanted, happiness, peace and quiet but, above all, he wanted love and the support from a partner. None of this was happening but he thought that in a new partner he would find what he yearned for. As he said to me –

“I need a partner, not a passenger”.

The mining industry in the West looked like the place where Dave wanted to be. He had struck up a friendship with a country lady and he was pretty confident that together they could make a happy life together.

So having plied Dave with what I thought was reasonable advice on his problem, I left and went about my business.

I heard nothing more from Dave for some months until he called late one night to say that he had left Alicia and moved in with Sarah. The whole thing had been a gut-wrenching event but having made the break he just wanted to make sure that Alicia and the kids were OK.

He was prepared to give everything he had to Alicia for peace and quiet and plain old happiness.

I tried to bring Dave back to earth – I reminded him that he was not so young as to be able to start from scratch so he had better factor in something for himself because whilst he might want to be fair to Alicia and the kids he had to be fair to himself as well.

Dave had been a winner – but winning wasn’t everything. The over-riding emotion he had was not guilt, both he and Alicia had just drifted apart. They each wanted something different. Parting on good terms was important to him. But what he felt was failure. He had invested 20 years into this marriage and it had all turned to mush.

Dave thought that his expectation for Alicia and the kids was fair and reasonable. (Oh Dave you have so much to learn!) In fact, Dave’s position was that if push came to shove he would give everything to Alicia and the kids and start again.

Well, the competitor in Dave was awakened with a jolt. The letter from Alicia’s lawyer was short and to the point. Alicia had been the driving force behind the marriage. Without Alicia, Dave would be nothing. All of this meant that Alicia was entitled to 70% of the matrimonial assets.

The letter from Alicia’s lawyer was the typical ‘fighting mentality’ letter; aggressive nonsense written by lawyers, whose motives can often be called into question.

Dave had a couple of questions. He was not in any way wanting Alicia and the kids to miss out – he wanted a fair outcome and after all, he had told me that he would give up the lot for peace of mind and happiness.

The letter from Alicia’s lawyer was insulting. Dave couldn’t remember Alicia being up all night studying for exams, nor had she been nursing a young baby while preparing for the next assignment and even though he hadn’t initially questioned the overseas travel, Alicia had a hell of a lot more stamps in her passport than he did.

The aggressive letter had gone too far – Dave was up for a fight.

I asked Dave to take some time to calm down – to take stock – to consider what other options there might be. Was there another way? A better way? One which had, as an outcome, less expenditure on lawyers? One which did not carry the potential to destroy either or both Dave or Alicia, not to mention the kids?

Sadly for Dave, there wasn’t. Alicia and her pumped up lawyer were up for a fight. The ‘woman scorned’ stereotype was alive and well, ably primed by Alicia’s lawyer.

Demand followed demand and each demand became more and more extreme.

The matter was in court and looked like following a long and tortuous road for Dave and Alicia, not to mention the cost aspect, until against the odds a settlement was reached at mediation. The terms of the agreement were signed and Dave could have been expected to think that the matter had been concluded on reasonable terms.

The wily old fox Dave left the mediation with a single comment to his barrister – ‘She will come back for more – it’s just part of her nature. She has to win and win some more’.

And Dave was right. A few days after the mediation, Alicia’s lawyer called me to say that the agreement was off. Apparently, Dave had looked too happy as he left the mediation. I know he did, but obviously, Alicia had attributed Dave’s smiles to something else. Dave was just pleased that it was all over.

Alicia now wanted to change the terms of the agreement. Somewhat surprisingly, the sticking point for Alicia was frequent flyer points. Obviously, Alicia wanted to go on further voyages of discovery and demanded the equivalent of 5 business class trips to the UK.

Dave said no. He had had enough. But in the end, Dave gave a little ground, not much, and the matter settled.

I always remember Dave’s story because years later I had the misfortune to be involved in another case which lasted more than 4 years.

This happened because, in my view at least, poor advice was given and the old chestnut of fees, as it always does, raised its head.

Four years later, and fees for each party exceeding $100,000, proved to me how pointless things can be. Some critics argue that family lawyers see clients as milking cows for fees. I am sure that there are the odd lawyers out there who are driven by fees but most of the lawyers I know are good and well-intentioned lawyers. Getting a good outcome for a client is what drives them on.

What Dave’s case and the last case mentioned brought home to me is that there has to be a better way.

Why is it that people, who have obviously loved one another in the past, who have lived together, quite often for many years and raised children, suddenly let emotion overrule common sense? Why is it that they are happy to hurt one another, to risk their future relationship with their children?

Partners will always have a continuing interest in their children and keeping the current and future needs of their children as a primary concern will require a joint effort. Keeping open communications with their former partner is vitally important – because the real winners are the kids.

Emotions such as anger and hatred are just wasted energy – there is nothing positive which comes from adopting a strategy which aims at bringing down your partner or making your partner miserable. Separation is painful – there is no room for argument on this point.

But consider the flip side – you may not love your partner anymore (irrespective of who might be at fault) but getting the best result from a split of property and making sure that the welfare of the kids is paramount are ‘wins’.

Above all, when the process is ended, you want to have retained your self-esteem and your dignity. These are outcomes which cannot be valued in a monetary sense, but their value to you as you move on to the next stage of your life is inestimable.

Dignity, peace of mind and the possibility of at least having a sensible relationship in the future with your partner can be found.

I believe that I have found the answer – the Collaborative Law process.

I only wish that I had known of the process in Dave’s case and the other case to which I have referred.

Do yourself a favour. If you are in the middle of a relationship break-up or just contemplating ending your relationship then review the information on our site. The material on the website is friendly and in plain English.

If you find the material useful and you would like to find out more about the process then you can contact Don Gayler at ldevere@gaylerlaw.com.au or Lesley Powell at lesley@milburns.com.au.

Cut out the heartache, do yourself a favour and think outside the box – it could just save your time, money and a lot of emotional upset.

You can read the conclusion of Dave’s story here – Dave 1 year on from his property settlement and divorce.