We Can’t Settle Together with Suspicious Minds: Why settling is hard to do when a Family Law Client is Suspicious

Family law clients are very vulnerable users of legal services. None more so than the suspicious spouse. They do not realise it at the time, but their suspicion greatly adds to their legal costs. The blame game rarely produces a net tangible financial benefit to the client pointing the finger at their ex.

So, what happens when a client’s anger meets a supplier of legal services in a family law setting? What if they are unable to let go of the who, the what or the when of the separation and instead of accepting their own role in the demise of their relationship – they relentlessly pursue interminable discovery – all in the name of the “Ah ha! Gotcha!” moment of finding out their former partner’s infidelity.

What should a lawyer do?

Suspicious clients may be prey to their own anger, hurt and desire for revenge. Their lawyer may not have the skills to either identify that these are the client’s motivations and in turn, those motivations are driving the client’s instructions. The lawyer may assume that their client knows what they are doing and the lawyer acts in a manner consistent with those instructions. Lawyers are expected to act ethically and ensure that after their duty to the Court, their duty is to their client. They must act in accordance with their client’s “lawful, proper and competent instructions”. (R8.1 Australian Solicitors Conduct Rules 2015)

What if the lawyer had real skills in helping a client unpack that anger in a supportive way and deal with their source of pain and hurt? What if the lawyer could identify and refer the client to some expert counselling to further this work? I suspect with the right team a client could be dissuaded from the all-pervasive and persistent belief that their ex has done them wrong, that they are hiding something and should never be believed (about anything, ever again). To be complicit with this thinking is to paint your client into a narrative corner from which they cannot retreat, long after the lawyers have gone home, and the matter is over. How does a parent work co-operatively with the other parent of children if they have been left stuck in the past?

Lawyers do not receive any formal training or undertake additional qualifications to better understand the psychology of their clients. Much of what they know or observe comes from years of experience. A lawyer who is interested in talking a client off the shelf of misguided beliefs can always turn to the evidence to help dissuade the client from insisting on potentially meaningless courses of action in the life of their family law matter.

I also have to accept the phenomenon that a lawyer might be but one cog in a legal practice that is driven by profits and their individual performance is scrutinised, so it doesn’t hurt their budget to have an angry client chalking up legal fees. Put simply, lawyers should not be in the business of representing family law clients for their own profit or gain or that of the firm. Don’t get me wrong. Providing legal services is a business and a business must be viable. A lawyer provides a service for a fee and in terms of regulation, we are possibly one of the most regulated professions. Regulation ensures that lawyers are competent, they comply with the law and Conduct Rules, they always act ethically and finally that there is transparency with clients in relation to legal fees. Ultimately clients have a complaint process that they can access around the country in relation to lawyer services and costs.

What I want to focus on is the opportunity, peculiar to family law clients, to exploit a client’s vulnerability with a corresponding financial gain. Or, the inadvertent exploitation of a client’s pain.

Most lawyers would refute that this is what they are doing and indeed, they may not be actively linking how their client’s anger can increase their profits. They may simply lack the skills to discern between what the client says that they want and what they can realistically hope to achieve and how best to achieve the latter. They do not know how to “sell” a better outcome to the client than one in which the client’s desire to find out all, comes at a cost which exceeds benefit.

The client may feel that they can use the family law system to seek revenge or punishment of their ex but in our experience at Caroline Counsel Family Lawyers, this often amounts to no more than a pyrrhic victory. We know that, for our clients, finding out an infidelity can be a blow to their soul and cause an irrevocable breach of trust. We also know that in the scheme of things, in the Family Court, an affair, without anything else pertinent to the Family Law Act, is meaningless and will not impact on the bottom line of what each party will receive.

What the anger or revenge is most likely to do, through a protracted Court matter, is to harm the children. We know that children are adversely affected if their parents fight and even if they have reached agreement in relation to children’s arrangements, it is unlikely either parent can shield the children from the impact of a Court hearing over several years.

We have lived with no fault divorce in Australia since the commencement of the Family Law Act in early 1976. This does not satisfy some clients. They want their lawyer to feel as outraged and indignant as they do. They want their lawyer to exact revenge. That is until we talk them off that ledge, do the cost benefit analysis, advise them that there is little to be gained in proving their ex was having an affair or for how long they were having the affair. We work with our clients and their counsellors to ensure that their grief anger and hurt is worked through in a way that does not lead to bad decision making or worse, adversely impacting on their children.

When lawyers have no interest in identifying and working with their clients’ emotional state or try to better understand their feelings, I hazard a guess that outcomes for those clients are more expensive and less satisfactory than when a lawyer can navigate those issues with real skill. In my opinion evidence may be used persuasively in Court but it is rarely used to persuasively shift the client’s thinking and get them into the right space to affect a settlement.

Caroline Counsel
Accredited Family Law Specialist, Mediator, Family Dispute Resolution Practitioner
Principal Caroline Counsel Family Lawyers

Acknowledgement to song writer Mark James (“Suspicious Minds” written and first recorded by him then made hugely successful by Elvis Presley.

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