ADAM HARVEY: The five-year-old Queensland girl has a good relationship with her father, but that has to end now after a decision by the full bench of the Family Court.

After years of litigation, the court ruled that it would be pointless to order shared care of the girl – that’s because her mother would refuse to cooperate.

The court says this isn’t in the child’s best interests and the only solution is to ban contact between father and daughter until she turns 18.

Shared care amendments to the Family Law Act were introduced by the Howard government in 2006.

Jenni Millbank is a professor of law at University of Technology, Sydney.

JENNI MILLBANK: The Family Court has to consider under the legislation the benefit to a child of a meaningful relationship with both parents and they must – if they order shared parental responsibility between the parents – they must also then consider whether or not the child would benefit from so-called equal time or if not equal time, substantial and significant time.

ADAM HARVEY: Sometimes shared care doesn’t work.

JENNI MILLBANK: If a parent if violent or abusive or if they have a very serious mental illness or an addiction, if they are not able to prioritise the child’s need over their own needs or if there is such extreme conflict between the parents that the benefit of the relationship is outweighed by the destructive impact of the conflict on the child.

ADAM HARVEY: And that’s what happened in this case.

Juliette Ford is a director of Canberra law firm Farrar Gesini & Dunn.

JULIETTE FORD: There are a number of extremely fraught issues between the parents. There were allegation of violence between them, there are allegations of abuse in relation to the child, there is evidence of the father’s attitude towards the mother, which is negative, and then there is also a lot of evidence as to the mother’s attitude towards the father which is also negative.

And the courts have been very careful not to in any way be seen to be complementing, congratulating or condoning the actions and attitudes of each of the parents, and this isn’t a case where one should see that the mother has been vindicated in her actions because the court has very much made a decision as to what’s in the interests of this little five-year-old, notwithstanding the actions of her mother in this particular case.

ADAM HARVEY: Professor Jenni Millbank.

JENNI MILLBANK: You know, as Tolstoy says, every family is unhappy in its own special way. So there’s no such thing really as the death of shared care or a precedent that binds other cases. This sounds like a very, you know, extreme and unusual sets of facts and so you’re going to get an unusual judgement.

I think it’s very clear that the shared care legislation has set down a pattern of much more shared care. So you can’t just say because it didn’t happen in this one case that that’s, you know, the quotes about the death of shared care I thought were just a bit extreme.

ADAM HARVEY: And parents who simply refuse to deal with each other are playing a high stakes game.

JENNI MILLBANK: There is absolutely that question of kind of thwarting the relationship but that is also a consideration in the legislation so the court has to consider the willingness of each parent to facilitate the relationship of the child with the other parent or with other important people.

So if you just say, you know, it’s over and I hate him now so I don’t want the child to see him, then one of the possible outcomes is the child will actually go into the primary care of the other parent.

ADAM HARVEY: Juliette Ford says that mostly, the laws have a positive impact.

JULIETTE FORD: What’s happened since those amendments is there’s been a greater number of cases where people have been spending more time with their children. Some can see that as being a good thing, some may point to some decisions where that necessarily hasn’t been a good thing.

But what it has caused people to think about is well, my actions and who I am as a person is going to have some relevance towards what orders somebody makes which is in the best interests of my child and it’s not about me and what my rights are, it’s about what’s appropriate for my children.

And that’s really what this case struggled with.

ADAM HARVEY: And there’s no disagreement that the real loser in a toxic dispute between parents is the child.

ELEANOR HALL: Adam Harvey with that report.

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Juliette Ford ABC Interview

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What is Collaboration with Juliette Ford

Introduction to collaborative meetings with Juliette Ford

Over my years of practice, and I have been practising exclusively in the area of family law since about 1996, one of the most commonly asked questions is ‘How do I ensure that our decision to separate does not affect the children?’. Some clients will say something like “At the moment we are still talking, it is tough though but I want to continue to keep talking and I want to make sure that we can communicate for our children’s sake. We know that our relationship has ended but for our children we will always continue to be their mum and dad. It is really important that they see us continue in this role even though we are now in different households.” Others will say “We can’t talk. It’s impossible. But I still do not want my children affected”.

What I have found is that if you do not find a way for people to be able to communicate effectively right from the outset then very easily distrust and miscommunication happens which has a terrible effect upon ongoing negotiations and can destroy any chance of resolution by agreement and any semblance of an ongoing functional co-parenting relationship, even in circumstances where people do not like each other.

There are lots of ways for people to go about reaching a resolution. There are the traditional options of negotiation with each party engaging a lawyer and there being, if you like, a table tennis match with letters going backwards and forwards. There is also the option of people going to mediation. Mediation does work for many people and it is a very effective tool. However within the mediation context more often than not the negotiation is a positional one because if you fail at mediation then the option of going to Court is still on the table.

Of course litigation is an option. The way the adversarial process operates means unavoidably each person has to hop into the boxing ring, take up their position and argue that position saying things which may have lasting consequences. However when all is finished in Court, the Judge has delivered his or her Judgment and gone away, the lawyers have disappeared and moved onto their next case, a lot of the hurt from things said in the name of “the best interests of the children” or “just and equitable” property settlement are not forgotten.

All of these options are second best. From my experience the best option open to people to reach an agreement is a process called “Collaborative Law”. My firm was the first firm to actively practice in the area of collaboration. What makes Collaborative Law different? Well, the most important thing which makes Collaborative Law different is that each member of the separating couple and each of their lawyers sign a contract saying they will not go to Court. This means each person has engaged their lawyer only for the purposes of attaining an agreement. Right from the outset the lawyers are engaged focused on settlement.

All the lawyers’ knowledge and understanding is directed at an out of Court solution. Lawyers in this process do not act in an adversarial way and do not put forward positions which are un-winnable. Each lawyer in the process represents their own client’s interests but does this in a non-competitive interest based environment.
A lot of lawyers will say it is not necessary to sign the contract. I disagree. The effect of signing the contract changes the whole style of the negotiation from being a competitive (I’ll start high, you start low, we’ll end up in the middle) kind of negotiation to one which causes the conversation to focus upon “Well, what do you want to achieve out of this? What is really important for you? Is maintaining a relationship with the other person really important for the benefit of the children? Is making sure that the fact that you have separated and you are 55 is not going to have a terrible effect upon your prospects for having a reasonable life in retirement important? What we do is actually set an agenda which is specific and relevant to the particular couple’s needs, concerns and fears.

The legal option is a relevant option and of course legal advice is given at the appropriate time. That legal advice though is given in a very open way. Each member of the couple can hear what the other lawyer has to say and further each member of the couple can hear how discretionary the whole family law system is and therefore relatively arbitrary in that no Judge is ever going to reach or be able to form a Judgment which is specific to the particular needs of this particular couple. Collaborative law however makes this conversation the central issue for debate and where appropriate facilitates the engagement of experts in a cost effect and non-adversarial way to provide information and advice in relation to the issues on the table for discussion. The threat of litigation most importantly is taken off the table.

Collaborative law facilitates a problem solving environment allowing the parties to really drive both how quickly they want to negotiate and what they want to do in their final deal. The lawyers facilitate that communication, overcoming any roadblocks, providing their expert advice along the way. You may think your case is ‘too hard’, the other side won’t communicate, there is a lot of distrust, there is ‘too much water under the bridge’, ‘I can’t stand being in the same room as my ex-partner’ etc. All of these cases are potentially Collaborative cases. Collaborative Law is for everyone who wants a resolution but doesn’t want to go to Court, but needs the assistance of lawyers to get there.

I have found it a more cost effective process for clients and that the agreements reached are agreements which stick, they are not agreements which have been reached either by way of cost pressure or what might be generally called “litigation exhaustion.” Collaborative Law provides an opportunity for clients to reach an agreement which is child focused and sensitive to the particular financial needs and concern of a separated couple.

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Together, they competed on the golf course and the cooking course. Memorable slices being made at both venues.

In the end, all enjoyed some fine wine and the fruits of the cooking. “Warm coriander crepe with duck, cucumber baton & hoisin sauce, tartlet of blue cheese mousse & caramelised pear, and pan seared prawns with Ramesco sauce.
A perfect way for financial advisors, accountants, psychologists and lawyers to relax and enjoy their company far from the pressures of the office.

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Farrar Gesini & Dunn Family Lawyers was established in 1995 as the first specialist family law firm in Canberra and grew to one of Australia’s largest three family law practices. Farrar Gesini & Dunn has pio¬neered and developed collaborative law in Australia since 2005.

Out of Court solutions provide people with a private, dignified, discrete divorce, even in circumstances where the relationship is difficult and communication has broken down.

“This is key for Canberra because we have such a small community, aspects of the Court proc¬ess are very public and can be damaging and demeaning,” Olivia Gesini said.

Consensus is run by some of Canberra’s best and most experienced family lawyers.

“Consensus was born from our experiences practising traditional family law. We have found that there is a demand for lawyers to provide Out of Court solutions. Most people are of the view that traditional litigation pathways don’t meet their expectations,” Ms Ford said.

Those who do opt for a courtroom solution also expect quick, fair and just outcomes in which the bad guy is punished and the good guy rewarded.

“Many people think their first day in court is their last, rather than the beginning of a long drawn out expensive process with the cost of litigation coming out of the family assets,” Ms Ford said.

The Australian legal system doesn’t publicly fund property settlements.

“There is no pot of gold, insurance company, com¬pensation payment or tax deductibility for the legal costs in property settlement disputes – it all comes out of the couple’s after tax dollars,” Ms Gesini said.

Consensus is committed to Out of Court solutions.

“We aren’t just lawyers dabbling in non court solu¬tions. We are putting our whole practice into this,” Ms Gesini said.

Consensus offers a range of Out of Court solutions including collaboration facilitation, negotiation and arbitration.

“No one option is suitable for all clients. We bring all of the options to people and tailor a particular process suitable to their needs,” Ms Ford said.

In Australia one in three first marriages break down; one in two second marriages break down and the fig¬ures are even higher for de-facto relationships.

“Like death, divorce is an unpalatable topic but one which must be faced. Although people find it difficult to talk about death, most people have a Will. Planning for a possible separation should be the same” Ms Gesini said.

Consensus brings lawyers with strengths in court¬room litigation to Out of Court solutions.

“Lots of lawyers say that they negotiate and help parties settle but our difference is that we are do¬ing this outside of the Court system,” Ms Gesini said, “Consensus represents a challenging and more satisfactory way of practising family law in the 21st Century,” Ms Gesini finished.

Traditional divorce process
1. See a lawyer.
2. Lawyer gives initial advice and drafts letter of offer to other side.
3. The letter of offer is usually an ambit claim and requires the other side to respond and seek their own legal advice (they are usually told if they don’t respond within a certain period Court proceedings will commence). The letter may sound abrasive, legalistic and intimidating.
4. Other party gets legal advice and responds with either a similar ambit claim or a request for further information.
5. Negotiations continue through a paper war until it is resolved or it heads to Court.
6. Court process takes 9-12 months.

Collaborative divorce process
1. Client sees lawyer.
2. Lawyer talks about options to settle.
3. A letter is sent to other party inviting them to take up collaboration as an option to resolving outstanding issues (letter is friendly, non threatening and non litigious).
4. If the other side engages a collaborative lawyer then the majority of negotiations occur through face to face meetings until resolution is achieved (other experts are engaged as required).

Both parties, their lawyers and other advisors sign a contract agreeing that the matter will be resolved through negotiation and that they will not represent their clients if it does goes to Court.

Out of Court options:

Collaboration: The representatives of both parties sign a contact and agree not to go to court. The lawyers are focused on settlement right from the outset. All of the lawyers’ knowledge and understanding is directed to an Out of Court solution. Lawyers in this process aren’t adversarial and don’t put forward positions that are unwinnable. Each lawyer in the process still represents their own client’s interests but does this in a non-competitive interest-based environment.

Facilitation: This service is offered by one of Consensus’ senior lawyers, Robert Routh. Mr outh is a former Registrar of the Family Court of Australia. In the course of that role Mr outh conducted over a 1000 settlement conferences in which lawyers and clients attended relating to litigated property settlements. Facilitation is a timely and cost effective way of helping parties to reach a final solution – or when negotiations through their lawyers have stalled. People can come with or without lawyers to this process whether or not Court proceedings have already commenced.

Negotiation: Negotiation can cover prenuptial agreements, cohabitation agreements, and binding financial agreements between couples who are still together, whether they are married, about to marry or contemplating entering into a domestic relationship. Consensus can also negotiate parenting agreements for same sex couples and through negotiation assist people with family businesses to restructure their business and put in place new corporate governance after a divorce. Post divorce some couples can continue working together.

Arbitration: In August 2007 Chris Crowley joined Farrar Gesini & Dunn as a consultant. He will now be one of the key members in Consensus Family Lawyers. He is an experienced mediator and arbitrator and has been in practice for more than 36 years. Arbitration is a process where if a separating couple cannot reach an agreement, rather than commencing proceedings and waiting for a hearing date, the separating couple engage a arbitrator to make binding decisions on the issues in dispute.

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We have brought a team of people together at Consensus Family Lawyers who will use collaboration, mediation, facilitation or arbitration as the primary way to reach an outcome.

The establishment of Consensus is in response to our perception that there are at least two legitimate ways to resolve disputes which arise as a result of a couple separating and that conventional lawyers only address one of those ways.

The first is the traditional way which Farrar Gesini & Dunn will continue to practice. This involves identifying what problems need to be resolved, what are the relevant facts and identifying what the law would say is a fair solution to the problem. This is known as a “rights based” analysis. The practice then advises its clients on the most cost effective method of achieving that solution.

The second way which will be practised by Consensus Family Lawyers involves a commitment by its lawyers that they will exhaust non-court based processes to find solutions to their clients’ problems. Consensus will identify what is important to each party for example their contributions and what each party wants to achieve by way of their financial security, and their relationship with their children whilst finding a way to maintain effective communication and appropriate relationship with their former partner – in essence endeavouring to reach an outcome which reflects these ‘interests’ without resorting to Court. This is known as an ‘interest based’ analysis.

The Canberra family law landscape has now changed. Consensus will provide a solution for those who are separating and want to avoid Court at all costs.

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Recently B2B in Canberra magazine attended the official launch of Consensus Family Lawyers and heard how it makes sense for separating couples to reach agreement about their family law issues without seeking the intervention of a court.

“Most people walk away less than happy afterthey’ve experienced the traditional ‘winner takes all’ approach to family law dispute resolution
where each party has had a lawyer and gone through the courts,” director of Consensus Family Lawyers, Juliette Ford said.

Juliette and fellow director Olivia Gesini head up a team of lawyers who are trained in collaborative law – a relatively new discipline in legal practice – where the aim is to stay out of the courts and for couples to reach their own solutions with the assistance of lawyers.

“In collaborative law, the separating couple and their respective lawyers sign a contract which declares that the family law matter in question will be resolved without the threat or possibility of engaging in litigation. We find that having the four parties sign on to this contract changes the whole tone and style of the negotiationsright from the outset,” Olivia said.

The focus of collaborative law is to achieve a fair outcome for everyone involved including children. A team will be assembled which may include experts such as financial advisors, mental health professionals and child specialists who will work with the divorcing couple.

Costly legal fees are another by-product of fighting family law matters out in the courts. At Consensus Family Lawyers, they are moving to a system of lump sum fixed fees.

“We are providing some services at a fixed fee and are working towards offering our clients a fixed fee for all our services rather than us charging
them at an hourly rate. This certainty in fee structure has proved extremely popular with our clients as they are able to keep tight tabs on their legal costs.”

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Leaving aside the emotional turmoil surrounding separation, often the period after separation when new arrangements are being negotiated or trialled is difficult and challenging. How the arrangements are functioning, the emotional and psychological impact upon the children and upon each of the parents can continue to be a work in progress.

At Consensus, with our focus on Out of Court solutions we discuss with our clients a process known as child inclusive practice as one option open to them to look at and address issues surrounding their children in a post separation environment. Both Olivia Gesini and I at Consensus Family Lawyers are trained in this process.

Child inclusive practice is more than mediation. It is a child centred process which focuses upon the difference between how children are coping and reacting
to the separation and how parents would like their children to be coping with the new arrangements and with their lives as a whole.

Child inclusive practice allows the parents an opportunityto re-evaluate how the current arrangement is functioning and why it is functioning in that way, to look at whether there are ways to change the current situation and what the possibilities of change would bring for the benefit of their children. Most importantlythe emotional and psychological ramifications for the children if no change is achieved is discussed.

The lawyers at Consensus Family Lawyers facilitate and encourage their clients to look at different ways to resolve issues in relation to the arrangements for their children of which child inclusive practice is one example.

A child inclusive practice is most suited in circumstanceswhere each of the parents have committed to not go to Court and have made that commitment in writing through adopting a collaborative law process to resolve the issues at hand. Once a family realises that they have a mutual goal to ensure that their children develop the potential to be the best and most well rounded adults that they can be and that the best way that this can be achieved is through a parental alliance then the option of going to Court disappears as a real option to achieve their mutual goal.

Child inclusive practice within the model of a collaborative law approach provides the best opportunity for parents to explore and develop such a parental alliance no matter how hard this can be or how hard or how hopeless it may feel to even attempt to achieve this goal.

For an Out of Court solution that suits your family, contact Consensus Family Lawyers.

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