Friday, 4 September 2015

Family Separation – how relevant is “family law”?

I’m aware of a recent family law case in which a clearly legitimate claim was dismissed because of a technicality involving the date on which a document was filed. This meant that the client was completely denied pursuing an appropriate property settlement after a very long relationship period in which the client and her partner had a child together. The partner won on a technicality!

I was struck by the injustice of this situation. The Family Court may have been correct in a strict technical interpretation of the law but the question is – how is this reasonable or appropriate in a family going through a separation process? How does this help anyone?

A marriage is not a commercial contract. It cannot be dealt with in the same way as business partners who end a business relationship. Yet this is what our court system does to a large extent. This approach does not meet fundamental needs of married partners or de-facto partners who are going through a separation process – especially when children are involved.

The adversarial court approach encourages people to “fight” for the best possible outcome – whether in relation to financial outcomes or even arrangements for children. The battle lines are drawn and tactics and strategies are used to gain an advantage. I am not saying that courts should never be involved in family law matters. There are some instances in which court intervention may be necessary. The problem is that the Family Court system and the adversarial process are almost the default position in how we deal with these issues and this approach is often pervasive in what passes for negotiation.

Families going through a separation process need advice, guidance, support and resolution – not a battle.

We need to minimise (not increase) conflict and division to assist families going through a separation process. We need to help separating partners work together with professional assistance to achieve solutions. Those solutions needs to be based on what is best for families and children – not on legally prescribed outcomes achieved through an adversarial process.

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