A family law judge has hit out at “horribly aggressive lawyering’’ driven by profit that is driving up costs in divorce proceedings and fuelling conflict between parents.
Family law judges and barristers have taken aim at some lawyers’ “aggressive and combative” approach, especially in Sydney rather than Melbourne — where people were “falling over themselves to settle” — in a new book, Inside Family Law.
Federal Circuit Court judge Joe Harman, based in Parramatta, in Sydney’s west, said some lawyers were creating unnecessary fights and did not seem to understand their proper role. “Their job is to be problem-solvers, to help people find resolution of conflict, rather than to generate conflict, to fuel it, to create it where it didn’t previously exist,” he says in the book to be released today by mediator Zoe Durand, the principal of Mediation Answers
“It’s a bit like what Woody Guthrie said, that if there was no profit to be made from war, we would have no war. In a lot of parenting disputes before courts, if there was no profit to be made, there would be no dispute, and the parties don’t profit from it.”
Judge Harman said one of the reasons the family law courts had not been functioning well was not only because of a lack of resources, but because of a “decline in some quarters of the legal profession”. Some lawyers were willing to run arguments regardless of whether they would win or lose. “I think a return to basics in lawyering and a stiffening-up of the legal profession and their ethical obligations is called for,” he said.
Also in the book, recently retired Federal Circuit Court judge Stephen Scarlett highlights a difference in culture between family lawyers in Melbourne and Sydney. “The Sydney registry was much more aggressive and combative … Judges from other states that came to sit in Sydney used to comment that they ‘needed to put on a helmet and a flak jacket just to go and sit in court’,” he says.
Judge Harman said some lawyers had become “aggressive mouthpieces”, rather than advising clients what would actually happen in court — that even if they won, they would still lose, because of what it would cost them in time, money and broken relationships.
“Going to court and creating fights between parents that they don’t need to have is just counterintuitive,” he said. “It destroys any prospect of achieving what those parents actually want to achieve.”
Retired Family Court judge Peter Rose, who was also interviewed, criticised some solicitors for a lack of knowledge and being poorly prepared. He said plenty of “bad litigators” seemed to “fall in love with their client’s case” — doing their client a disservice. “(As) a lawyer in litigation, you’re not a politician. You’re not there to win popularity. You’re there to give professional advice with integrity,” he says in the book.
Barrister Bridie Nolan also speaks out in the book against the “belligerent and unintelligent approach” of many of her Sydney family law colleagues, who were willing to act as a “conduit for the ruthless execution of vendettas”.
“This is particularly my experience with the larger family law firms, which pride themselves on having a reputation for ‘taking no prisoners’,” she says. “A more commercial approach needs to be taken to the practice of family law and its litigation, rather than the current currency, which is something akin to a Year 10 locker room.”