‘The reasons couples separate are mostly mundane. That doesn’t mean they’re not painful’ | Mali Waugh

1 year ago 78

There are particular moments in family law that are universal among practitioners. Most of these happen during the first meeting, when a client comes in with requests for a “fair” property division or anticipating “justice”, only to have their misapprehensions about our family law system explained and their expectations dashed.

These clients imagine the law as a nimble thing, able to fit the situation, to tread delicately and repair only what is broken. They are shocked when they learn that their grievances will be treated in the same way as a thousand others. They expect to explain everything to a judge who will be sympathetic to their point of view and scold their ex. In fact, the chances of even seeing a judge are small; the chance of addressing them directly, negligible. “Law is reason free from passion,” said Aristotle. That makes it all sound very clinical, surgical. And yet, reading a list of all of your failings as a parent in affidavit form can feel not just cold but downright cruel.

I’ve worked as a family lawyer for over 10 years, doing both legally aided and private work. In that time I’d estimate that I’ve spoken to 500 husbands, wives, partners. The work undulates with the seasons. We always seem to be busiest late in the old year or early in the new. People either want to get things out of the way before Christmas so that they can have a fresh start, or decide after the stress of the Christmas break that they are well and truly done. It is work that can be tremendously rewarding. But it can also be like lifting up a beautiful, smooth rock only to be confronted by a nest of venomous spiders. People who seem entirely together, caring and kind, can be nasty, mean-spirited, sadistic.

The reasons couple separate are, for the most part, mundane. It is people who have worn each other down through fundamental differences in attitudes to money or parenting or what makes a good life. That the reasons are mundane does not mean they aren’t painful. But rather, when salacious details do rear their heads – affairs, secret second families, hidden second houses – they are a symptom rather than a disease. Occasionally an act of God will intervene in an otherwise happy relationship – a workplace accident, a mental or physical health crisis, an addiction. But these are the exception not the rule.

When I meet with clients, they invariably say they want things resolved quickly and cheaply. It is usually possible to predict whether this is realistic by observing the way they talk about their ex. If they are referring to their wife of 20 years as “her” and “she” and have a mental list of every time “she” used the heater when it wasn’t cold, chances are they are spoiling for a fight.

People often assume they will receive the same outcome as their brother, cousin, neighbour. They have heard the stories, compared the asset pool, the number of children. But outcomes are dependent on highly personal values and beliefs. One client may want to take a case to trial over $40,000 worth of superannuation because to them, winning or money or both are everything. Another might be willing to sacrifice time with a child just to have things wrapped up quickly. One client withstands the rigours of cross-examination with composure; another might let their ex’s counsel get under their skin.

A registrar once said to me that every person tells their version of the truth. For the most part, I agree. I think people tend to tell us their “emotional truths” which do not always accord with the facts as they appear in bank statements, medical records, emails. The way a person feels that events transpired is their story. This is, I think, also why some leave the system claiming they were robbed or that they lost their house or children.

The parenting matters are the saddest. The easier, less conflict-ridden of these are often sifted out before they reach a lawyer’s office via compulsory mediation. By the time I am consulting with a client about their children, the arguments are bigger and nastier: serious family violence or abuse allegations; one parent wanting to move overseas with a child; a toddler being exposed to an unacceptable new partner or drug use or anger. These are the cases where the views about what should happen to the children are so divergent that litigation becomes necessary.

There are always surprises. The surprise of realising that the client whose story I genuinely believed had actually been lying to my face. The surprise of a client in whom I had little faith doing the parenting program that they were ordered to attend. The couple who were at each other’s throats for months only to reconcile at court and leave the building holding hands.

There are beautiful moments too. The client who will freely admit that the ex-partner who dragged them through the court system is “a good mum”. The client who volunteers to lend their ex their car so that time with their children can keep taking place. The people for whom a lightbulb finally illuminates something, who realise that a behaviour must stop, that change is imperative and promptly follow through in bettering themselves. It is these moments that can make lifting up that rock worth it.