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Recently, I was lucky enough to “instruct” my director, Sarah Keenan, at a family law arbitration, arbitrated by the Honourable Peter Rose, a former Family Court judge. Arbitration is nothing new to the building and construction industry nor a new form of dispute resolution in family law. But it is not commonly practiced or endorsed as an alternative to litigation.
Simply put, arbitration is a process whereby parties argue a matter and evidence is put before a practitioner who is NOT a judge but who has the same decision making ability as a judge to resolve a dispute. The arbitrator must be specially trained and worth their weight.
What the parties in the matter I was involved in were able to achieve through the arbitration process instead of the usual court process, was control.
Control Over Process
They were able to choose who they wanted to convene the arbitration and be the decision maker. We didn’t leave it up to the luck of the draw which happens in the court process as you are just allocated to whichever judge is available to hear your matter.
Financial Control
We controlled the amount of money spent, or more accurately, not spent through the process; we didn’t draft affidavits, call witnesses or cross-examine anyone. There was an agreed statement of facts and any issues not agreed were pointed out and argued on the law. The parties were present during the arbitration which lasted around half a day. They we able to put their argument forward, but weren’t forced into a compromise they didn’t want. They focused on the important stuff. The award (or judgement) was sent to the parties about 3 weeks after the arbitration.
In comparison, in the Family Court…
You could be waiting 3-6 months for judgment and Orders of the Court. That is on top of the 12-18 months you’ve already spent in the court system waiting for your matter to be heard. The contrast is startling.
The message is simple and needs to get across to more people, lawyers and parties, a like. Arbitration is a process that can save you money and time; you can obtain a resolution to your matter quicker than the court system can offer you.
What does that give you? A better life! A chance to live your best life without Court proceedings looming over your head; a clean and just break to your separation.
Ask us how Arbitration can work for you. Even better, ask us how we can Collaborate and Arbitrate.

My view on infidelity was questioned when I read an article by The Independent titled “Cheating can make your marriage STRONGER”.
I thought, “What could this possibly say?” What I found intrigued me. Hidden in the article was a reference to Ms Esther Perel, a psychotherapist who works exclusively with married couples touched by infidelity.
Relationships can be hard. After long periods of marriage or commitment, relationships may become monotonous, drawn out. Life can feel stilted, unchanged. Children may become demanding, draining. Time gets lost, moments of spontaneity few and far between, sexual desire limited or emotional connection lost. In those moments, people may turn to others to fill that space and in doing so turn away from their partner.

Ms Perel in her Ted Talk, Why Happy Couples Cheat, explains her understanding of relationships and what ultimately leads some people to cheat. She talks about what infidelity does to a relationship and how sometimes, out of the ashes of such an act, a relationship can be redefined and a love reawakened.
What I find so fascinating about Ms Perel’s experience with infidelity is the “shame” people feel when they stay in a marriage with a cheating partner. What an interesting notion because of course, you wouldn’t stay with an unfaithful partner, right? In times gone by, it was shameful to get a divorce. Now it seems the opposite is true.
Ms Perel says that the majority of couples she sees stay together after infidelity. Sometimes, through conversation and an understanding of that person’s motivations, couples are able to reawaken their fire or love for one another. They are able to have a conversation about their desires, fears, wants and needs that they may not have had for some time. Some couples survive it and turn it into an experience but others can’t push through.
Either way, there is no shame in how you choose to live your life.
Love and marriage should not be taken lightly, yet neither is the required devotion and fervour to mend a broken relationship,
If one thing is clear, it’s that infidelity is not blak and white, and it plays a different role in every relationship based on how you choose to address it.

I try to encourage my clients to avoid Court whenever possible. The majority of family law matters settle by agreement, but for an unlucky few, going to Court is unavoidable.
I recently talked to some of my clients who have been through the Court process to give an insiders perspective on what Court can be like, particularly for parents.
If you are thinking about starting the Court process, read this first to give you an idea of the positives and negatives of the experience.
Below are some thoughts from Kylie, Jonathan, Mary and Tracey*, who have all had different experiences of Court.
*Names and details have been changed to ensure anonymity
An honest review of Court and the family law system
If you could go back in time, would you go to Court?
Jonathan: Yes, I would definitely go back to court. It was the only way I was able to have a relationship with my child.
Tracey: In my situation I don’t think I had an option. I tried everything I could to avoid it – and I would do so again. It must be considered as a very last resort.
Mary: I truly don’t believe I had a choice in whether we entered the court system or not… As we couldn’t come to any agreement the court process was necessary.
What would you do differently?
Jonathan: I think having a ledger that was filled out meticulously would have assisted. Including dates, times and events. Questions I wanted to ask my lawyer would be written down as well.
Tracey: If I could go back in time I would have protected my rights before separation.
Mary: Don’t engage in petty arguments.  If it’s not going to matter in 72 hours then don’t bother. Work out what you will/or won’t compromise on if you’re headed to mediation – also tell your representative and ask them to help you stick to it.
What advice would you give to someone thinking about going to Court?
Jonathan: Be sure of the outcome you want, make sure it is achievable, and not done just out of spite. Above all ask yourself, and others in your support group, is what I am doing / trying to achieve, in the best interest of my children. Only if the answer is yes would I commit to go down this path again.
Kylie: You need to commit, know the outcome that is achievable and commit to the end.  Otherwise it’s not worth starting if you’re not going to see it through. The court system doesn’t allow quick outcomes.
Mary: See if you can resolve it another way first.  However, also understand that you need to do what you think is best for your child or you will regret it forever.  If court is the only way for you to do this, then you don’t have a choice.  Try to be informed.  Be aware it will consume your life… Don’t put your child in the middle.  The grownups need to talk about the grown up stuff. Put your ego aside.  Do what’s right for your child, not either parent.  A child isn’t property.  A child can’t be split down the middle and distributed evenly.  Children have feelings and needs and these change over time.
Tracey: I’m glad I sought legal advice early. And I’m grateful that the advice I received was to ensure I gathered as much evidence as I could. In the end it helped make all the difference. Be sure that whatever you are doing is in the best interests of your children. If an amiable relationship between parents is possible then that is what should be pursued. If going to Court is the only option to protect your children, or protect your relationship with your children, try and put your emotions aside and focus on the evidence. You must remember that everyone in the Court system is coming at your situation from a cold start and are aiming to be objective. No matter how terrible your situation is, the only thing that will matter is what you can prove.
Do you think mediation or other dispute resolution methods might have worked for you instead of Court?
Jonathan: We tried mediation first. Unfortunately, my ex did not want to negotiate at all.
Tracey: I wish more than anything it would have been an option – but in my situation it was not. I tried and it failed. But I would still strongly recommend everyone try alternate paths before Court.
What did you find the hardest about the court process?
Jonathan: This was a very long drawn out matter with a lot of ups and downs, wins and losses.  It was emotionally draining.
Kylie: Going to court is very costly and people need to be prepared for this expense let alone the emotional roller coaster.
Mary: It was a very stressful process.  My children are the most important things in the universe.  There is a lot of pressure to ‘get it right’, along with the ‘wildcard’ of what a Judge may decide on your behalf.  Not knowing was also stressful…  Ask your legal representative lots of questions.  The days were also very long and I think the process ‘breaks’ parents…  The process along with trying to be a good parent for your child, and worrying about how you will pay for legal expenses, at the same time is immensely exhausting.
Tracey: Three things – firstly the amount of time to get a hearing and then the amount of time to get a judgement. It is utterly traumatising and places you in a state of constant stress and uncertainty for an incredibly difficult amount of time. Secondly, the Court comes from a start point (I believe) of seeing both parties equally believable in giving evidence. I accept this is an important element of necessary objectivity – however, when one person is caught perjuring or if one person ignores Court orders, there are virtually no consequences. It’s hard to get over how frustrating and catastrophic that can be. Lastly, the cost is insane. For me a lifetime of financial responsibility was consumed entirely. I have no idea what people with no resources do. I feel despair for them.
What did you find positive about the court process?
Jonathan: Even though it can be a long drawn out process, when it goes your way it feels like someone is listening and wants to help.
Kylie: Having a final outcome
Tracey: The only thing I can say is after the inordinate amount of time it took to receive a judgement, it was clear the judge was incredibly diligent in reviewing the significant amount of evidence… I’m deeply grateful for the obvious time and effort the Judge invested.
Mary: We have orders that resulted from court.  It means we have a clear set of ‘rules’ so there is not so much back and forth about everyday issues, and also about more major issues such as schooling.  I don’t feel as frightened of the other party as before as the orders address safety concerns.  Also, having an independent expert report written (although also stressful) which explains theory and applies it to our situation provides me with comfort that what I felt as a parent was right for my children, and is what was recommended to occur.
Did you have a counsellor or other emotional support? Would you recommend having a counsellor or other support?
Tracey: I did. It was critical.
Mary: I had very strong emotional support from family.  You need someone to talk to – the process, worry, stress etc is overwhelming.  However, don’t be surprised that people who haven’t’ been through it don’t understand.  They won’t understand that the things that concern you… Join some online parenting groups – even just as an observer – you’ll find plenty of people in there in the same boat (or worse)
Jonathan: I would not recommend someone go through this without unconditional support. Either professional or a partner.
Now your matter is out of the court system, how have things changed?
Jonathan: Life is as normal as it could possibly be.  The anger goes away, and everyone knows where they stand, and what the rules are.  Abide by the rules and everybody wins.
Tracey: For the first time in two years I feel like I’m on relatively solid ground with hope.
Mary: The court orders provide a set of rules we need to abide by.  The constant arguing and messages have slowed due to this.  The orders provide some certainty which is a relief (even if it’s not necessarily what either party wanted).  We now know what will occur and when.
A family lawyer’s thoughts
Court can be a long, costly and emotionally draining experience for everyone involved. Before starting down this path, some of my key recommendations are:

Get legal advice early – getting advice from a family law specialist as soon as possible will help you prepare key evidence (if needed) and act strategically, but also will importantly help you set your expectations about what is achievable and reasonable.
Explore all the alternatives – there are many options to try and reach an agreement without going to Court. These can include mediation, negotiation, conciliation, and collaborative law.
Be prepared to compromise – in most cases, there is room for negotiating an agreement. It may not be exactly what you wanted, but if you can reach an agreement that is within the range of likely outcomes, this avoids the time, cost and stress of the Court process.
Have a support system –whether it is a new partner, your family and friends of a professional such as a psychologist, whether you go to Court or not, having support at this difficult time can be critical.

Kasey Fox is a Director in our Canberra office and has been working in family law for 15 years and is experienced in both property and parenting matters. To make an appointment with Kasey for advice on your situation, call 02 6181 2052.

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