Sunday, 28 September 2014

Why I like being a divorce lawyer: "Only one person believed in me- you did, and you changed my life as a result. Thank you."

Many of my colleagues over the years- those who do not do family law- have said that those who do family law are mad, and "I don't know how you can do  it"- before regaling me with their rare, searing family law experiences. "Give me crime, or leases, or commercial work" seems to be the mantra, anything other than family law. They have evidently not experienced the extraordinary personal rewards that come from being a divorce lawyer.

Recently I had the joy of seeing an old colleague retire. My colleague was my supervisor many years ago- in the 80's, and she finally retired at the age of 78. Carmel Murray was known as the Duchess of Divorce- someone who tirelessly fought for her clients.

I mention Carmel, because it was from her inspiration that I decided to become a family lawyer. When I went to uni, family law was ironically the subject I liked the least. It didn't seem like real law- like trusts and equity- but had to do with the sordid topic of divorce. I was much more interested in what REAL law had to offer.

Then reality hit when I started in practice as a graduate law clerk in 1985. Insurance work, commercial work- well it might have been real- but on the whole I was bored rigid. After the rigours of a law degree, I could not believe that the rest of my life would have ended up like this! And then one day Carmel blew into the office. A force of nature, Carmel practised solely in matrimonial matters, as she said back then, and was beloved by her clients. Unlike the clients in insurance and commercial work, family law clients were real people!

Real people going through stresses and strains brought their own rewards. I discovered that I could help real people. This was not like helping a corporation, usually in a fight about money. This was helping those who were going through the pain of separation and divorce- and helping them stand up on their own two feet. At times, I would help my clients rediscover their sense of humour (although of course I was a lawyer, not a counsellor), and most often of all, their sense of decency and self-esteem.

There are few more satisfying acts than helping someone who has no self-esteem, after suffering the knocks of a relationship breakdown, and often an abusive relationship, to be able in the rough and tumble of divorce to be able to stand on their own two feet, and be able to take pride in themselves.

One of the most memorable occasions was acting for an Aboriginal woman who had suffered horrendous domestic violence. She was but a punching bag for her husband, a terrible, violent drunk, who bullied everyone around him, and when he didn't get his own way accused them of racism.

Her separation was more dramatic than most. Her husband was laying into her but that was not enough. He enlisted their teenage sons to help throw their mum over the bonnet of their car. She, and I'll call her Shelley, escaped, with blood pouring from her face. Shelley ended up at the local doctors' surgery. They quickly cleaned and stitched her up, and called the police. The police arrived- and did very little indeed. The police took Shelley to a refuge. The police told her to apply for a DVO. She had no idea what a DVO was. They didn't explain that it was a domestic violence order, or how to get one. They also didn't tell her that it was their duty- under law- to apply for one on her behalf if they reasonably suspected that she had been the subject of domestic violence. They also didn't tell her that she could press criminal charges against her husband.

Instead, Shelley was conveyed to a place of safety at least, the refuge. There she got help to apply for a protection order, when I was asked to help her, which I did gladly. Although Shelley's husband was going to contest her application, he arrived late at court, and Shelley was able to obtain the vital protection she needed.

Shelley then sought to have her husband charged with assault. Despite the clearest evidence that she had been grievously assaulted, police refused to take any action. I phoned the cop in question- to be given the lecture about why he was smart, and my client and I were dumb, how he was a police officer, and I a mere lawyer, etc. Well, that had the predictable response- the tersely worded letter of complaint by me about the cop. I didn't want the cop to lose his job. I just wanted him to do his job- the job that he had sworn an oath of office to perform. If I had sworn an oath of office as a solicitor, and he had sworn a similar oath as a police officer, the least he could do was to give me some respect and courtesy, and do the same for those seeking the protection of the law. The least he could do for Shelley, and the interests of justice, was to investigate the complaint of assault, and if the evidence stacked up- to charge Shelley's husband.

Following the complaint being made- and resolved- the police officer charged Shelley's husband with serious assault. That was not the end of that. Shelley's husband pleaded not guilty, and even dragged the kids in as witnesses to say how their mother had lied. They were disbelieved. Shelley's husband was convicted, and luckily for him, he was not jailed.

And on it went. Shelley wanted to see her kids. Off we trooped to the Family Court. It was one of those cases that leaves a bad flavour in the mouth. The expert who interviewed the sons said quite clearly that they were overborne by their dad, when they said that they wanted nothing to do with Shelley- but that there was little that he or the court could do. Reality hit home. With a sense of resignation Shelley stopped the court proceedings.

And then 7 years later on a Tuesday morning, completely out of the blue, Shelley phoned me, to thank me for what I had done. I said that I hadn't done much- we had got the protection order, her husband had not been jailed, and most bitterly of all, she had not been able to spend time with her boys. I had tried my best- law is the art of the possible- but we had not succeeded in having her husband made truly accountable for his actions, nor in allowing the boys to have a relationship with her.

Shelley told me that her life had turned around. She was now married to a man who was loving and respectful, kind and not a violent drunk. Shelley had managed to score full time work- extraordinary given that she had only got to Grade 3 at school. But most amazing of all, Shelley's sons were now living with her. They too had managed to escape the clutches of their dad, and moved to live with their loving mum.

Shelley then came to the crux of the call- why she had phoned me was to thank me. I said that there didn't seem much for her to thank me- given the outcome. Shelley told me that I was wrong. What I had taught her was to believe in herself. "No one believed in me, not even me. Only one person believed in me- you did, and you changed my life as a result. Thank you."

Wednesday, 24 September 2014

What an extraordinary morning- acceptance by both IAML and AAARTA!

Some morning its pays to wake up! This morning was one of those mornings. When I went through my emails this morning I came across two extraordinary emails. This morning I have been accepted into membership of both the International Academy of Matrimonial Lawyers, the most prestigious grouping of family lawyers internationally, and as the first international fellow of the American Academy of Assisted reproductive Treatment Attorneys, AAARTA.

If there is any doubt whatever, I have been recognised by my peers here and overseas, after extremely thorough vetting processes,  as having the necessary expertise in family law and surrogacy matters.

What an extraordinary day!

Tuesday, 23 September 2014

Visit to an old friend opposed to domestic violence

Last night I was lucky enough to call in an old friend who was recovering from major surgery. Her prospects are good, thankfully.

Visiting her made me reflect as to how long it has been that I have been involved with domestic violence. This is because we became friends in trying to help stop domestic violence. My friend started a court based domestic violence service. It was and is designed to help women and children when the women need to go to court (and related matters) over domestic violence issues.

I first met my friend as long ago as 1992. I had formed the view that she had started the service back then- but it became a running joke that although she had undertaken work in the area from 1992, she did not start the service until 1993. I was there from the beginning, although I did not get formally involved on her committee until 1999.

Long after my friend retired from that service years ago, I continued on the committee, finally leaving there, due to my other commitments, only last year.

When I first met my now old friend, way back in 1992, I had already had 7 years of helping survivors of domestic violence. I hadn't intended this to be part of what I did as a lawyer, but I was confronted by the ugliness of what many women (and occasional men) had to go through in their home lives. I hadn't been subjected to domestic violence when I grew up. My parents loved each other to bits.

Domestic violence was and remains truly shocking. While we as a society have taken considerable strides in reducing rates and the severity of domestic violence, it still remains unacceptably high, especially among aboriginal communities, and homicides still happen, as we saw with the murder of Allison Baden-Clay, for example by her husband Gerard Baden-Clay. And just in case I am unclear- any domestic violence is unacceptably high. We are all entitled to live in safety and freedom, hopefully in loving, respectful relationships.

So I decided to do what I could to help end domestic violence. This desire on my part has led me to help found a domestic violence service (now 20 years old), chair the committee of a women's and children's refuge, and be on the board for several years of a charity seeking to end domestic violence.

But above all, in the midst of this personal commitment, I was seeking to do good in my role as a lawyer- and by those special skills and training, help protect those who have been the subject of domestic violence. Lawyers have the ability by virtue of their advocacy and skills to make real differences in the lives of their clients and those around them. Our job at its finest is not by the numbers- it is making real changes in the lives of people- whether in the day to day run of litigation, advocacy and negotiation, or in the longer term advocacy for change of legislation and systems to be fairer and consistent.

I also recalled last night how many years ago my friend and I had both worked with a young woman full of laughter and joy who had helped end domestic violence, until she in turn was forced to flee for her safety- before she was murdered by her former partner. A tragic, preventable loss.

Last night as I was visiting my friend, I reflected about how I have been blessed to have helped change lives for the better, by helping keep people safer, and that thankfully, no one has been killed on my watch. Hopefully that record will endure. 

Mediation is just another form of negotiation

Today I helped a client at a mediation. One of the striking things about today's mediation, as opposed to any other, was that the mediator announced that he had been involved in over 4000 mediations. The first thing I thought when I heard that number is that I thought that it was a huge number- and then I am afraid to say that I thought that he was old!

However, the number made me reflect that I have been attending or running mediations as a mediator since, unbelievably, 1986. I can't boast of having had over 4000, but I would guess well over a 1000 or 2.

What struck me about all of this is the obvious- mediation is just another form of negotiation. Good lawyers should be able to negotiate on behalf of their clients. The reality is that there are negotiators and there are negotiators. An acquaintance of mine, who sold finance to buyers of cars, once joyfully told me the story of how car salesmen used to love it when lawyers came along to buy a new car. Why? Because the lawyers thought that they could negotiate- and assumed that when they signed the deal they were winners. The reality was that the lawyers were particularly poor negotiators, who did not know all the landscape before they went to buy a car- so when they went to buy a car while they thought that they were getting a bargain, the salesmen sold them the most expensive option. Last laugh to the salesmen.

When I say that mediation is another form of negotiation- that's all it is. Don't get me wrong- if you have a mediation then as a lawyer you must be prepared. It always amazes me the number of lawyers who unfortunately do not prepare for court adequately, and are left floundering when they get there. Mediation is no different, in the sense that preparation is essential.

But that's not all, of course. The lawyer's role in the mediation is to help guide the matter to resolution- if it is in the best interests of the client. Some of this come from reality testing, and making sure that the client is realistic BEFORE the mediation about the likely outcome. There is no point posturing before a mediation with a hopelessly exaggerated, unrealistic ambit claim, if all that it achieves is that the client concerned then believes that they are entitled to such an amount, and then won't back off. As well, an ambit claim has the profound effect of torpedoing any goodwill from the other side which may be vital in settling the matter.

After all, if the matter doesn't settle at mediation, then it may result in tens of thousands of dollars and months of misery while the matter proceeds through the Family Law Courts- let alone what untold misery could be inflicted by the parents on their children (even if a property dispute).

But why I say that mediation is a form of negotiation, is that despite the usually very helpful role of the mediator, mediation is not an end in itself. It is merely another form of negotiation, and something that should come to most family lawyers well. While mediation is the flavour of the month, negotiation BEFORE any mediation, or INSTEAD of mediation, or if it fails or does not resolve everything, negotiation AFTER a mediation should never be ignored. Those negotiations might settle the matter, even though they may not involve the intervention of a very helpful and very skilled mediator.