"Australian Lawyers need to wean themselves off orders"
At a recent conference, Professor Patrick Parkinson, Chairman of the Family Law Council, made that statement with reference to the use of Parenting Orders in Family Law settlements. When I heard those words, I saw the light and I began my journey on the road to becoming an enlightened family lawyer. It was time to break free from the subconsciously entrenched view that court orders are always required to regulate the lives of parents and children after separation. Whilst, presently, I am rightly concerned about being sued if I fail to include parenting orders when settling a case, what if the ability to include "parenting orders by consent" was taken out of the legal system?
Parenting Orders by Consent- I say: Get Rid of It! Why do lawyers need to be involved in getting parents to work out sensible arrangements for their offspring? It is not a legal problem. In reality, "parenting disputes" are a part of everyday life for parents whether they are living in domestic bliss or whether they are separated. You, as parents in an intact domestic situation, would be incredulous if, as a result of you and your spouse disagreeing on whether to allow your 14-year-old daughter to attend a particular birthday party, a lawyer was called in to help to resolve the dispute! That's a private issue. We don't need an expensive lawyer (possibly with no expertise in parenting or child psychology) to tell us how to run our lives! Exactly, so why do you need a lawyer to do so after you have separated? Is it because you can afford to spend the money to bludgeon the opposition into submission? Or is it because you are not paying as you have Legal Aid? If the current court system was not available for the parents to use as a forum for parenting issues, then people may well resolve it themselves- just like they do when the family is still together. Currently, the Family Court of Australia adopts an approach that requires litigants to adhere to pre-action procedures and an exhaustive resolution phase in proceedings. This all comes about because of the philosophy that parents should be encouraged to resolve their parenting disputes rather than a Judge impose a decision on them. Why not keep these disputes outside the Court System altogether if the majority of cases are going to be resolved by agreement anyway? Courts should provide a judicial decision making service not a mediation service. If people want help from professionals skilled in the field, then it should be available to them outside the court system. There needs to be a shift in culture. Rather than people calling their Lawyer to help resolve the issue, people would contact the local Family Relationship Centre, which we are told will be a gateway to appropriate government and non-government support services.
To date, the family mediation services available have assisted parents in resolving their disputes through mediation and counselling. The clients are then usually advised to consult their lawyer "to make it legal". It is this last step which I am also calling into question. This is where lawyers attempt to translate a "warm and fuzzy" understanding about the family arrangements into a precisely drafted legal document. If people have worked it out for themselves, then it should remain a private arrangement and simple legislation should be enacted to facilitate this.
But, what happens when people cannot work it out for themselves, albeit with the help of skilled professional counsellors at one of the new Family Relationship Centres? This is the point at which, if the Government had accepted the recommendations of the Community Affairs Committee of the House of Representatives on Joint Custody, the case would have been referred to a newly constituted multi-disciplinary Tribunal (which would be a lawyer-free-zone). The government has put an obstacle in my path to enlightenment as the Courts are (for the time being) still the arena for battle when parents cannot agree.
In the meantime, at least try venturing on to first stage of the road to enlightenment by referring clients to the Family Relationship Centres- you will find that you have a lot more time to concentrate on real legal work.
26 September 2005
Silvio Auditore, Accredited Family Law Specialist
Director of Auditore Pty Ltd, Melbournewww.auditore.com.au
