By Caitlin Fitzsimmons – Sydney Morning Herald.
April 30, 2021
More separating couples are avoiding the Family Court by engaging in “collaborative divorce” where the professionals work as a team and all parties commit to not go to court.
Collaborative divorce started in the United States in the 1980s and came to Australia in 2005 but industry professionals report there has been a surge of interest in the past year.
Gloria Hawke, a family law mediator with the Mediation Collective, said the publicity over the Family Court merger and awareness of long waiting times for a final hearing were contributing to the shift, alongside a general rebalancing of people’s personal priorities during the pandemic.
“In the last 12 months, instead of people saying ‘that’s a strange process, I don’t know if that could really work’, we’re seeing a lot of the larger law firms training their lawyers and actually participating in the process,” Ms Hawke said. “It’s getting more respect and the word is slowly getting out there.”
Family law firms such as Broun Abrams Burreket, Barkus Doolan and Pearsons are among those offering the collaborative divorce model, which means the separating couple is represented by a team, including a lawyer each, a joint mediator or counsellor and sometimes other neutral professionals such as accountants and valuers. Any legal advice is shared openly and if the process breaks down, those lawyers cannot represent their clients in court.
Family law solicitor Sue Abrams, the vice-president of the Australian Association of Collaborative Professionals, said this created a powerful incentive.
“There is no ability to pull a ‘if you don’t like this, I’ll see you in court’ – everybody’s got some skin in the game to try and get this resolved,” Ms Abrams said. “More often than not, people don’t want to stab each other in the eye, they want a civil resolution.”
Proponents say for most couples the collaborative process is more likely to lead to a resolution that works for the whole family and preserves relationships, reducing stress for the adults and any children. It is not recommended for situations of family violence, addiction or child abuse.
The rise of collaborative divorce is reflective of a general trend towards alternative dispute resolution, which also includes mediation and arbitration. While collaborative divorce by definition only exists outside the court, the Family Court is expanding its resources for other types of dispute resolution and has appointed senior registrar Anne-Marie Rice to a new role driving that.
“Over the last several years or decades there has been a shift – and collaborative practice is reflective of this – to the idea that lawyers should be problem solvers rather than just litigators,” Ms Rice said.
Nearly 50,000 divorces are granted every year according to the Australian Bureau of Statistics, but many property or parenting arrangements are resolved informally.
In February parliament passed the controversial merger of the Family Court and Federal Circuit Court with the aim of reducing the backlog of cases. Currently, it takes about 20 months from the time court action is commenced to a trial in the Family Court and 16 months in the Federal Circuit Court.
However, over the past five years, the Family Court has also overseen a steady rise in the number of consent orders – where the parties come to an agreement either independently of the court or with the assistance of the court’s resources and have it registered with the court. In 2019-2020 the court granted 14,946 consent orders and in the same year it made 2394 final orders where the outcome was determined by a judge.
Lawyers say contentious cases can take years to resolve and cost hundreds of thousands of dollars in legal fees. With collaborative cases, Ms Abrams said collaborative cases typically took three or four meetings to reach agreement and cost $10,000 to $25,000 each.
Sania and Vaughan Saady from Allambie Heights agreed to separate in July 2019 and used a collaborative process.
The couple is now “birds-nest parenting” where the children, aged 10 and 13, stay in the family home and their parents take turns to stay with them. Mr Saady has bought out his ex-partner’s share in the house, while Ms Saady and her new partner are renting a two-bedroom flat in Manly, but both parents have their own room in each property.
“I went through two horrible experiences as a child when my father married and divorced twice and I didn’t want that for my children,” she said. “I chose this for everybody’s mental health and well being – I still like Vaughan, he’s a very good friend to me and I didn’t want to ruin that.”
Ms Saady found the collaborative process “amazing” but added that it helped that she also had personal therapy, while Mr Saady said he and his ex-wife “get on better now than before” but that was also because of their character.
Other couples who spoke to The Sun-Herald say the collaborative process was “still very confronting” but the structure ensured they reached the best outcome possible.