Family Law Dispute Resolution

Friday 4 April 2008

The enactment of the Family Law Act 1975 (Cth) represented a momentous shift in Australian attitudes to marriage, family and divorce.  Previously, the Matrimonial Causes Act 1959 (Cth) had offered 14 grounds upon which divorce could be obtained, all of which required a finding that one party to a marriage was at ‘fault' and responsible for its end.  The Family Law Act ushered in the current era of ‘no fault' divorce, in which divorce may be granted on the grounds of irretrievable breakdown of a marriage, demonstrated by a 12 month separation period.[1] 

Research suggests, however, that many separating couples continue to think about the breakdown of their marriage in terms of fault.[2]  Family law practitioners see many clients caught in protracted disputes about parenting or property matters that often appear as proxies for unsolved relationship battles.   At Richard Calley Family Lawyers, we aim to guide our clients' focus to the matters that are really in issue, which can be all too easily clouded by the emotion associated with separation.

This emotional aspect of many family law disputes can complicate the question whether litigation or alternative dispute resolution offers a better means of reaching a just outcome.  The desire for public recognition of one's story can be strong, and some parties have a strong desire to air their grievances in a courtroom.  Others are keen to conclude matters as quickly as possible and move on from their separation.  This question of how to resolve a dispute requires careful consideration of its nature, the relationship between the parties, and the competing interests underlying each party's position.

The choice between litigation and alternative dispute resolution is not dichotomous; rather, dispute resolution operates "in the shadow of the law."[3]  Each party's understanding of their legal rights will influence their engagement with dispute resolution processes.  Accordingly, it is important to obtain sound legal advice as to the manner in which judge-made law would apply to the dispute at hand, before endeavouring to settle the dispute out of court. 

Parties to family law disputes have four main options available to resolve the dispute, and each offers advantages and disadvantages which must be weighed according to the circumstances of the particular case. 

Negotiation

Some separating couples are able to amicably and reasonably reach agreement regarding their financial and/or parenting arrangements.   As this is a private process, with "no enforceable restriction on what people may choose to negotiate about," the parties can determine the focus of their discussion as they see fit.[4]  This may enable issues to come to light with which the law would not concern itself.  Negotiation also offers the chance for the parties to speak directly about their grievances, and provides a greater sense of ownership of the final outcome.   

The privacy of negotiation, however, can pose a risk to justice in certain circumstances, such as those where there is a significant power imbalance between the parties.  Research has shown, for instance, that women who have suffered violence at the hands of their partner are far less likely to broker a deal satisfactory to their interests.[5]   This potential can be minimised by the consultation and inclusion of lawyers within negotiation discussions.   

Not only do lawyers bring expertise in the theory and operation of family law to negotiations, but also, and importantly, the wisdom of legal process. Process is fundamental to successful negotiation, for it regulates communication between the parties which could otherwise be distorted by emotion and imbalances of power and resources.[6] 

Collaborative Law

  Collaborative law processes are relatively new to the Australian legal model.  Lawyers trained in collaborative law are able to guide their clients through a unique procedure designed to minimise conflict and maximise client satisfaction.  Parties and their lawyers attend negotiation sessions together, and focus on reaching a resolution through interest-based models of negotiation.  This approach is often successful in situations where parties reach an apparent deadlock. 

[1]