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Exploring Options Beyond The Family Law Act – A Personal Reflection

Exploring Options Beyond The Family Law Act – A Personal Reflection

I am pleased to share an experience of how Collaborative Practice allows for the development of options for dispute resolution that are not limited to the provisions of the Family Law Act.
Upon returning home from the 10th International Academy of Collaborative Professionals Forum (IACP) in Minneapolis in October 2009 I was invigorated and challenged to apply new skills learned and ideas that I had to take back to my office to enrich my practice.
The first family law client I met upon my return was a perfect candidate for the application of my new skills. On looking back at my notes of that initial meeting my client told me he wanted a process that did not harm the relationship he had with his children and would help him and his wife get through their divorce. The issues that he brought to me were for there to be an adjustment of assets and liabilities and an inquiry about child support, payment of school fees, likely legal outcomes, issues regarding the schooling of the children and the need to ensure his wife did not need to work more and that she receive spousal maintenance to ensure she could spend sufficient time with the children. These issues that my client had identified at the time of this first meeting could only be in part met by Section 79 Family Law Act or a financial agreement pursuant to part VIIIA of the Family Law Act.
The difference between the adversarial model and the collaborative model was first brought home in this case when I contacted the solicitor for the wife. My client told me his wife has seen a solicitor who I knew from past experience embraced the collaborative model. At the time of my telephone call to my collaborative colleague we spoke generally about looking forward and working together to help our clients who had made favourable personal impressions on us both. The conversation dealt with what we understood had been happening since our clients separated and arrangements for a first joint meeting. At the time of that telephone conversation there was no thought of trying to gain some tactical advantage but rather how best we could both work together to help our clients at their first and subsequent meeting. After the telephone conversation I sent a circular email that confirmed arrangements for the first meeting, that the first meeting would include the entering into the participation agreement, identifying goals for the collaborative process and a brief agenda.
At the first joint meeting we followed the agreed agenda and at the conclusion of 2 hours we had all gained some knowledge of each other and a participation agreement had been executed. We agreed an agenda for the next joint meeting which included the identification of our client’s goals, interests and concerns, the planning and gathering of further information and documentation and the engagement of other neutral professionals and experts. At the conclusion of the first meeting my client sought my advice regarding spousal maintenance and child support. I gave him advice about the nature of these topics but did not seek to expand that advice to how these issues should be addressed in his case. I spoke with him about his interests and concerns and the importance of hearing what his wife’s concerns were. I emphasised the importance of attending the second joint meeting without a fixed position and the importance of having an open conversation regarding both his and his wife’s interests and concerns which would be likely to include property settlement, child support and spousal maintenance.
At the second joint meeting the issues identified by the parties related to property division, income distribution, child support and spousal maintenance. The clients agreed they did not need assistance in relation to parenting matters in the collaborative process as they were confident they were able to communicate directly with each other on these topics.
At the second meeting the parties agreed to gather further information and to develop during the period of the adjournment options to be explored at the next meeting.
At the third joint meeting we reviewed the goals that had been established at the first meeting at which my collaborative colleague and I have agreed should be reviewed at each subsequent meeting. Much of the meeting was a conversation concerning various methods of the wife receiving a future income stream from the husband. At this meeting the parties were able to develop options in an unfettered way and without specific labels such as spousal maintenance or child support being used. Whilst the concept of ending the financial relationship between the parties as required under Section 81 of the Family Law Act was taken into account by myself and I am sure my collaborative colleague it did not dominate the conversation or distract it from the aim of achieving an outcome that satisfied both our client’s goals. At the third meeting varying income sharing models were presented. It became apparent that it would be likely the parties would be assisted by expert financial modelling. At the time there were no local collaboratively trained financial specialists. The parties agreed to meet with an accountant who had the ability to explain financial models to the clients. The advantages of the collaborative process shone through in that the decision of who to engage was not based upon any tactical advantage but rather the person who was believed to be genuinely the best fit for the role. The jointly engaged accountant received a joint letter of engagement from both the collaborative professionals. There were several off-line meetings between the parties and the jointly retained accountant. The parties jointly gained knowledge of the options available for sharing future income.
After the parties had met with the jointly engaged accountant, a further joint meeting resulted in an agreement being reached which the collaborative professionals recorded by way of a binding financial agreement.
This was an example of clients, with the assistance of collaboratively trained professionals, jointly using problem solving techniques to get to a mutually acceptable solution.

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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.