When we see people after they have separated, there are a range of different concerns people have. Common ones include:
- How long will it take,
- How much will it cost,
- Will I have enough money to live,
- How much time will I have with my children.
Often, and understandably, people are upset, or angry, or stressed and in those circumstances we quite often hear things like, ‘I want you to win the case for me’, or ‘I want the very best outcome I can get.’
When I first started practice, I thought that meant the same thing to everyone. They wanted to get the highest percentage, or the most number of nights with their children. But it doesn’t – ‘winning’ is a weird concept, in family law.
Some kinds of cases have a winner and a loser. For example, if one parent wants to relocate and the other opposes it, someone wins and someone loses that issue. If one party says there is a relationship and the other doesn’t, someone wins and someone loses that issue. There are some ‘yes or no’ issues that have a winner and a loser.
But most cases don’t have that issue. And there’s a whole range of factors that will influence, I reckon, whether in hindsight you consider that you won or you lost. Further, the process of separation is hard. It’s not fun, or optional, or cosmetic, or good. It’s hard, and sad, and even the best outcomes usually means splitting one jointly held pool of property and income and superannuation between two, and coming up with shared arrangements for children. Even if you get 95%, you’re 5% down on what you had. Even if you get 13 out of 14 nights, you’re 1 night down on what you had.
So with that said, here are some things I think you should consider when working out what you will consider a ‘win’:
- How long is it going to take, and what’s the benefit to you of having your case finished more quickly? This is particularly important usually if you have your own business;
- How well do you deal with stress and uncertainty;
- The cost/benefit. No point spending $100,000 to get $50,000;
- The significance of a quick outcome (for example, if you want to relocate, what is the benefit of moving sooner rather than later).
I’ve run a few very big cases to trial and, if you read the judgement, you would think my clients had a ‘win’. We look like we ‘won’. But for some of those clients, the years of litigation, the very significant cost, the unpleasantness of the process, the effort it took and the stress endured to get to that point has hampered their assessment of whether they ‘won’.
It’s pretty disheartening, as their lawyer, to have a great ‘outcome’ but for your client – who by that stage you’re usually pretty close to – to be disillusioned by the whole process (including the outcome), sometimes 3 years after they first came in.
We say that one of our key points of difference is that we find solutions that fit for our clients. That isn’t just a gimmick. It’s really important that the advice you get takes into account what you need out of a settlement so that afterwards, to the extent it’s possible, you consider your outcome to be a ‘win’.
Give me a call if you want to discuss.
Cheers, Adam.
Adam Bak is a Family Lawyer and Director at Farrar Gesini Dunn.