Inside Family Law

Conversations from the Coalface

Zoë Durand

• Publisher: Longueville Media
• Year: 2018
• ISBN:
  9780648339854
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

For someone navigating the Family Law system after a relationship breakdown, its complex processes, jargon and unfamiliar concepts can be daunting.

Through rare and candid conversations, Inside Family Law demystifies family law and empowers those embarking on the process. It will help you find the path to a positive outcome for everyone involved. Readers can access interviews across Australia with Judges, family lawyers, barristers, expert psychiatrists, family therapists, forensic accountants, expert business and property valuers, and also firsthand accounts of the system, including children’s stories.

Topical, insightful, and practical, Inside Family Law covers parenting and property matters, Court and settlement processes.

Designed to be dipped into, it includes 60 key questions and answers, and highlighted tips throughout give instant access to key points.

Though primarily intended for those separating, Inside Family Law is equally useful for family lawyers and for anyone working with families more broadly.

Inside Family Law allows readers to pick the brains of leading minds such as: Judge Joe Harman, Justice Peter Rose, The Honourable Stephen Scarlett, The Honourable Robyn Sexton, Dr Antony Milch, Alison O’Neill, Linda Campbell, Brian Pickup, David Bird & Mark Lipson.

Judge Joe Harman1

Judge of the Federal Circuit Court

Not the dollar, not the corporation,
but the family

Judge Joe Harman was appointed to the Federal Circuit Court (then known as the Federal Magistrates Court) in 2010, after 25 years of practice as a family lawyer and Family Dispute Resolution Practitioner. In both his legal and mediation careers, Judge Harman has been involved in researching and advocating with respect to issues of domestic violence, mental health, and culture within the context of Family Law disputes. Judge Harman has written and presented on Family Law issues at domestic and international conferences and as a lecturer at the University of Western Sydney and Sydney University.

Since appointment to the Federal Circuit Court, Judge Harman has developed practices within his docket focussed on achieving better parenting outcomes, and engaging community-based services within the Court process, and in working with parents. He is currently working on making mediation services more accessible to litigants.

This broad experience was very clear in his interview, as Judge Harman weaves in law, academia, and popular culture references, and provides intellectual insights infused with a wry sense of humour. He shares his views on mediation and its role in Family Law, family violence, on how we represent children, and why the adversarial system could work in Family Law if lawyers focused on resolution of disputes and multi-disciplinary practice to assist parents heal and change. Overall, Judge Harman believes we could be doing better by families as a society and that they are the priority: ‘Not the dollar, not the corporation, but the family’.

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I’d like to speak with about your mediation project. Before we get to it though, could you tell me just a bit of background? What was the path that you took and how did you come to Family Law?

A lot of chance. I’m one of Gough’s children. I went to university because Gough Whitlam had made education free, so my generation of my family, my eldest sister and I, are the first people in my family for 300 years who have been to uni.

I did law because my father suggested I should, as I had a job cadetship as an engineer and it fell through – the company went bust – so I went and did that. I had no idea what I was doing or why I was doing it. I got to the end and by then I thought, I’ve got a law degree, I’ve got to get a job. So I got a job. It just so happened the first job I had was predominantly Family Law.

You obviously had an interest in it or you wouldn’t have stuck with it, I’m guessing?

I certainly have an interest in it. I probably now have more of a passion for it; I really like what I do. I spent the first seven or eight years just being a lawyer, then trained as a mediator in the early ’90s and by the time I got appointed as a Judge in 2010, I was doing about 50% mediations and about 50% being a lawyer, predominantly representing kids.

I’m aware that you’re working on a mediation project at the moment. What exactly is that?

I’ve got a lot of projects about mediation. I am keen on the idea that media­ tion, or alternate dispute resolution in general, are how we should be dealing with families. So, for the reader, there are facilitative ways of resolving disputes through negotiation, mediation, or counselling, and there are determinative models, like arbitration and the court. I’ve done a lot of research through my job in the Court in this area.

Over the last few months I’ve been trying to put together lists of FDRPs [Family Dispute Resolution Practitioners] with help from the Attorney General’s department so that I can have lists to give to all my fellow Judges and to my Head of Jurisdiction of the accredited FDRPs and what they charge, where they work, and what their qualifications are, because it’s just impossible to find a list of FDRPs that lets you make an informed choice about who you might actually use for mediation.

I’m hoping that we’re at a point in history where maybe we start to think seriously about what we’re doing, and I think we are. There’s the Law Reform Commission Review of Family Law, in general. The Senate Committee’s report last year suggested we really need to be looking at structural and systemic change for our system.

Mediation [in parenting matters] has been, theoretically,
a compulsory requirement for 12 years now, but in reality, I would observe that many people do not go to mediation before they come to court in parenting cases.

In property cases, no-one has to go to mediation before they come to court. And they generally don’t. So, I’m really hoping that all of this drive and this momentum we have might move us towards recognising that relational disputes in Family Law have better ways of being dealt with than people coming to Court and beating each other up in an adversarial system.

What do you see is the benefits of mediation as opposed to a Court adversarial system, in the context of Family Law?

I suppose, to start with, not every matter is suitable for mediation. There are disputes that need Courts. People who have horrific histories of violence and fear of their partner probably need to come straight to court.

Most parents, even if they have concerns and issues in their relationship with each other, are not of the magnitude where they’re ever talking about their children spending no-time with a parent.

The problem with an adversarial system is it can set you up as competitors in the system, where you’re fighting each other.

You adopt a position, you defend it for your life, and the process in an adversarial system then becomes about persuading everyone how you’re right and everyone else is wrong.

Mediation is self-empowering and self-determinative. People get to focus on their needs and interests rather than their positions.

It gives them an opportunity to preserve relationships. They can develop, or at least not damage their co-parenting relationship further – and hopefully even improve – how they communicate with each other. Because, if anything, a Court order is dependent upon how people can communicate and their capacity to implement it and work together. It’s almost like the medical Hippocratic Oath: If you do so much damage in the process to get to an end result, there’s just no point at all in having gone through that process.

Recent cases have highlighted horribly aggressive lawyering. Not adversarial lawyering, because people conflate the idea of an adversarial system with an aggressive system. I think adversarial lawyering is just really about getting to the truth, and people who are aggressive, who obfuscate, who don’t provide disclosure, who engage in silly fights about meaningless issues just don’t seem to understand what their role is in the system.

Are you hoping that there would be, for example, more of an uptake of mediation because of this project you’re working on? Is that the goal?

I think my goal has been essentially two things. Firstly, to ensure that there was good available information to let people make informed choices about accredited mediators – nationally accredited mediators and FDRPs – rather than just going back to some idea that mediation is just something people do. We have accreditation systems. I think it’s important that they’re honoured and validated, and that we use accredited mediators.

But secondly, I’m just very conscious that while it’s great to talk about how people should go to mediation, the practicalities on how you actually find a mediator and choose one are very hard. Most of the sites you can go to just bombard you with names, and you’ve then got to phone 50 people to find out what their qualifications are, what they do, what they charge.

There should be a more user-friendly interface with that sector so you can look at a list of ‘here are the people in my area; this is what they charge; here’s their qualifications and experience; let’s pick one’. Because otherwise you’re just shopping on price, or you’re shopping blindly, and have no idea what you’re getting.

Something somewhat related: I’ve come across, through interviewing people who’ve been through the system, is this sense that they’re getting on and off bus stops. Like, their lawyer is just shuffling them from place to place. They don’t really feel empowered, and they feel that they’ve lost control of the matter, wondering what’s going on.

Yeah, I think that’s very valid.

It’s particularly relevant I think to family violence cases that the definition of family violence is focussed around coercion, control, and fear. The Court is coercive, controlling, and can even generate fear in people, especially as, for most people, a family law dispute is an awful time in their life and their kids are really important to them. Courts can determine where people’s children are going to live, when they see them – or if they see them – whether their house is going to be sold … Court is just a disproportionate reaction for most people’s disputes.

Our common law system is designed so that everyone who has understanding of the law, which predominantly is intended to come through getting competent legal advice, is going to know pretty much what a Court’s going to do for them anyway.

One of the things that is often left out of that advice is how long it’s going to take, what it’s going to cost financially, what it’s going to cost them in terms of their relationship, their stress, their time off work.

I think one of the problems is that there’s been a falling down of the legal process in terms of how lawyers have come to be viewed and how some lawyers see themselves. Some have become aggressive mouthpieces, champions of people rather than zealous advisors who tell people what’s actually going to happen. You tell them, ‘The reason you don’t want to go to Court is because …’, or ‘If you take this to court, you’re going to lose’, or, as Abraham Lincoln said, ‘Even if you win, you’ll still lose’. Because of what it’s going to cost you in terms of time, money, broken relationships, it’s just not going to achieve what you want.

Plus, if you were to ask most parents what they want for their children, they’d all have the same answer: ‘I want my children to be happy. I want them to have the best life they can have. I want them to be well educated.’

Going to Court and creating fights between parents that they don’t need to have is just counterintuitive. It destroys any prospect of achieving what those parents actually want to achieve.

One thing also I’d like to ask you about is whether you think that there should be, say, mandatory mediation in property matters, not just parenting matters?

Yeah, I do. I think it’s important though that we don’t start to see mediation as a cure-all, or it will just become a failure as well.

Mediation needs to be prepared for, just like a court case needs to be prepared for. You need to be able to create a balance sheet that’s pretty well agreed with what you own, what you owe, what all the figures are. And a lot of people approach mediation either flippantly, as though it’s just a waste of time, or as though it is this cure-all, that the mediator will fix it all, but the mediator can’t determine what a house is worth. So, the parties have to do that work to get there.

But I think …

the vast majority of parents, particularly in financial cases, given the time, given the option, and given the opportunity to just sit down with competent advice, and having done the work they need to do to understand what their dispute is actually about, can sort it out very quickly and easily without coming to Court and fighting.

You mentioned family violence before. Obviously, there’s been a lot in the media in recent times on family violence. Just anecdotally, is it at a crisis point? I mean, that’s what’s talked about in the media.

Well, I can talk about it more specifically than anecdotally, because the research I do around mediation is particularly focussed on what the cases that come to a court or go into mediation look like in terms of their characteristics, how often they involve family violence. About 80% of the cases that come through the Federal Circuit Court at Paramatta involve allegations of family violence. Now, they’re not all the same allegations, although I’m very conscious that …

family violence is very personal to individuals and it’s very experiential. It’s silly to try and arbitrarily decide what is serious family violence and what is not; it depends upon the individual.

The reality is that the vast majority of cases involve allegations of family violence. There’s a lot of controversy and a lot of aca...

Table of contents

• Q&A Index
• Key practical points for lawyers
• Preface
• Judges of the Family Court & Federal Circuit Court
• Former Federal Circuit Court Judge Stephen Scarlett OAM RFD
• Retired Federal Circuit Court Judge Robyn Sexton
• The Honourable Justice Peter Rose AM QC
• Judge Joe Harman
• Parenting Matters: Court experts and other professionals
• Dr Antony Milch
• Alison O’Neill
• Linda Campbell
• Julia Nowland
• Jakki Schwartz
• Property Matters: Court experts and other professionals
• Brian Pickup
• David Bird
• Tristan Oddi
• Charlie Viola
• Mark Lipson
• Individuals who have navigated the Family Law system
• Simone
• Nina
• Kris
• Noah
• Brooke
• Jacqui
• Michael
• Ryan
• Robert
• Hugo
• Marco
• Barristers
• Trevor Tockar
• Tom Hutchings
• Sandrine Alexandre-Hughes
• David Blackah
• Mark Holden
• Greg Kenny
• Bridie Nolan
• Lawyers
• Maurice Edwards
• Cristina Huesch
• David Barry
• Joanna Knight
• Stephen Page
• Tash Nolan
• Sherlene Heng
• Rana Saab
• Tina Lohitharajah
• Beth Jarman
• Alison Brown
• Claire Neilsen
• More about Zoë Durand