Select sessions summary from the 19th National Family Law Conference 2022

FamilyProperty recently attended and exhibited at the 19th National Family Law Conference in Adelaide. Here we share insightful key takeaways from four select sessions which include:

The Resilient Lawyer

Presented by Robyn Bradey, RB Counseling & Consultancy Services, this session focused on practical tools and tips which lawyers can use to strengthen their resilience during challenging times. Providing a wealth of proactive well-being strategies, Robyn Bradey has aimed to leave family lawyers with a solid understanding of the neuroscience behind stress, and why self-care and supporting others is a priority within the profession.

Key takeaways:

• Lawyering is known as one of the ’unhealthiest’ professions.

• Lawyers:

  • Consider - is this what you want to be doing in 2 years in time? Recognise that there may be other career paths that may be open to you outside of the law.

  • 70% of lawyers leave within 5 years of entering the profession.

  • If you are having doubts about your current role, talk to someone you trust and investigate what other career paths might appeal to you.

• In the meantime, prepare and sustain yourself with:

  • New skills

  • Knowledge

  • Attitudes

  • Practices

  • Habits

• The Whole Brain Model is one of the safest ways to operate.

Candace Pert, Pharmacologist and Neurologist, shares useful tips from her book Everything You Need to know to feel Go(o)d:

• Eat – more organic food and limit your caffeine, alcohol, and sugar intake, and all drugs. It is important to eat with good company.

• Get moving and exercise - slowly build up to five hours a week minimum if you need to. There’s nothing quite like building up a sweat and getting your heart rate up. Post- exercise, you might like to try some time in the sauna for additional self-care (A User’s Guide to the Brain, John J. Ratey, 2002; Candace Pert).

• Sleep – 8hrs a night is the minimum required. Some individuals need more, others may need less. Establish a regular sleep routine, and switch screens off a few hours before bed for good brain health (Ratey; & Pert).

• Play – it’s important for your brain to have some fun, and can even make you smarter. Engage in sports, play board games or memory tricks with your kids, learn a new language, take a dance class, or singing lessons - the options to have fun are endless. Seek resources from Candace Pert, Daniel Siegel, Todd Sampson, and Learning through Play to learn more.

• Connect with others – have friends outside work who care about you, make new friends who work in different professions, spend quality time with family, seek mentors at work, or look for opportunities to mentor others.

• Lawyers typically overwork and are perfectionists – learn to let go of these.

• Recognise that your brain doesn’t differentiate between normal levels of stress and life-threatening stress – the brain will go into fight/flight mode, and experience vicarious trauma by coating the nerve endings with cortisol. While the flight / flight response in the wild is meant to last 3 minutes , humans have been able to develop our pre-frontal cortex which plays a role in memory development. To the brain, replaying negative thoughts is the same as having the activity occur again in real-time, firing our fear centre each time. Having this chronic fear response activated long-term can create real health issues.

Important skills to cultivate to promote lower levels of stress:

• Interpersonal skills - learn to get along with others and cope with both your own and other’s emotional reactions.

• Cultivate empathy to guide your response when working with a client. This will let you know when things don’t feel right, and help you preserve your own personal relationships.

• The art of negotiation – find a suitable course and attend formal training to learn how to hone your negotiation skills.

• Increase your levels of self-awareness. Meet with someone you trust on a regular basis who can help you put strategies in place to learn more about yourself and your reactions to certain situations.

• Practice mindfulness - learn to put yourself into a more positive frame of mind, which can help you focus. Ruby Wax has some great resources to help you get started.

• Ensure you get enough sleep. A lack of sleep can result in impaired thinking, an avoidance to make decisions, or making impulsive decisions. Long- term reduced sleep may result in chronic illness, and a lowered immune system. Seek out resources such as The Sleep Doctor’s Sleep Hygiene tips, Dr Michael Bruce, and Matthew Walker’s book Why we Sleep:The New Science of Sleep and Dreams.

• Seek out new knowledge and develop an interest in new subjects, sports, the arts, keep up to date with current affairs, stay connected and attend work events, and meet new people who may become new mentors and friends.

• Attitudes and habits – what you believe and think, and how you behave radically affects both your well being and your skill levels, and can even create physical changes in the brain. Try changing negative, cynical thoughts to more positive ones and see what a big difference it can make to your day. Seek out resources by Susan Greenfield, Daniel Siegel, Jeffrey Schwartz’s book You are not your brain, and Ellen Langer.

How to flourish as a lawyer:

• Behave ethically and with integrity

• Collaborate and work well with others

• Find purpose in meaningful work that helps others

• Spend more time doing what you enjoy

• Maintain a healthy sense of humour - laughter really is the gateway to the rest of your emotions.

• Value what you do! Bear witness – this is often very healing to your clients simply by acknowledging them and making them feel heard.

• Seek out resources by Martin Seligman, and Andrew O’Keefe to learn more.

• If you work in criminal law, child protection, and / or family law, watch out for, and recognise you may be susceptible to developing vicarious trauma through the nature of your work. Seek resources by Chase Figley, Victor Frankl, and Robert Sapolsky to learn more, as well as help from mentors and professional supervisors if needed.

• Check in with yourself regularly, reflect, and ask yourself these questions:

  • Am I still happy with my job?

  • If the answer is no, what will it take to make me happy?

  • Is this achievable?

  • Who can help me achieve this?

  • What would I like to be doing in two years?

• Don’t wait to get sick, make a mistake, or suffer from burnout, find and speak to someone who you can trust. Learn to lean on your support network - who can you approach that can offer help and support? These may include:

  • Mentors

  • Supervisors at work

  • Your firm’s Employee Assistance Program

  • An external counsellor or medical professional

  • Coaches

  • Peers or work colleagues

  • Friends and family

• Professional Associations may also be able to help and advise such as Lawcover, the Law Society in your state, your local Bar Association, and professional institutions such as The College of Law.

• When you are not enjoying work, recognise this, and take proactive steps to address your feelings and emotions.

• Don’t underestimate the value of getting good sleep by ensuring you have a regular bedtime, a quiet room to sleep in, no stimulants such as coffee after 5pm, and making a conscious decision to minimise screen time before bed.

• Be mindful - when ruminating on the events of the day, interrupt them and redirect your brain. Read The Third Space by Alan Fraser for further information.

• Try alternative methods of relaxation such as aromatherapy.

• Keep boundaries with clients, but at the same time, be empathetic. Challenge bad behaviour without criticising, and learn to use dialectical behavior therapy, which is designed to help you deal with difficult clients.

Wellbeing Session - Coping with being a Family Lawyer

Presented by Justice Altobelli, Justice Brasch, Cinzia Aglieco, and Lucy Thomas, this panel discussion considered the challenges and stressors of working within the family law jurisdiction and the need for meaningful cultural changes, which can only be achieved by advocacy, education and hands-on pastoral care.

Key takeaways:

• It’s okay to say NO

• Develop a good network of colleagues and look at your situation from a different perspective

• Reach out to colleagues and don’t be afraid to admit that you’re struggling

• The importance of employers adopting a systemic and practical approach to wellbeing

• Get professional help with a skilled and experience social science professional

• Sometimes tragedies happen on our watch in family law matters - it’s a fallacy that you could have done anything differently

• We are not responsible for the client, but to the client for the job we do

• Lawyers are more likely to self-medicate with alcohol. Instead we need to develop self-care techniques to cope

• Important to recognise the signs and symptoms of stress and have open conversations about challenges in the family law jurisdiction

• Understand family law workload and how stress is on you and how it impacts on your wellbeing. We are dealing with incredibly complex human issues that are becoming harder and more complex (and can be more threatening)

• Employers need to ensure employees have time away from work - not 24/7 workload and need to teach lawyers to say no to clients and work

• Consider firm strategies to manage difficult clients / matters such as:

  • Regular file review

  • File swapping

  • Colleagues sitting in on client meetings

  • Briefing counsel early

  • Co-management of matters

  • Buddy systems

• Formal debriefing is important

• Be aware of the Law Society wellbeing services such as the Solicitor Outreach Service

• Understand risk and impact of vicarious trauma

• Need to have confidence in confidentiality

• Need to share our stories about our lived experiences - powerful to showcase this from testimonials from the top

• It’s okay not to be okay

• Need to be kinder to ourselves

Did you know that FamilyProperty now partners with the Family Law Education Network of Australia (FLENA) that provides a collaborative environment focussing on practitioner wellness and support? FLENA offers a free 3 month membership with CPD, precedent and wellbeing support which includes:

• Facebook membership;

• Access to Wellness Seminars;

• Access to Wellness programs and offerings;

• Access to engagement for mentorship program (when in offer)

Understanding Family Violence - What all Family Lawyers Need to Know

Judge Beckhouse, Angela Lynch, and Jess Hill highlighted the challenges faced by both family lawyers and the courts in understanding family violence.

This session focused on better understanding the subtle dynamics of coercion and control where there may be little or no physical violence. This session provided family lawyers with a deeper understanding of family violence and what is required to assist the court in the pursuit of the legislatively weighted primary consideration of protecting children from harm of family violence.

Key takeaways (focused on coercive control) included:

• Coercive control is not a crime yet in any state in Australia. Note that there is proposed legislation being considered (e.g. Crimes Legislation Amendment (Coercive Control) Bill 2022 NSW)

• We still have systems that are unable to combat domestic abuse, that women are forced to stay

• Worst part of coercive control can be the humiliation, degradation, feeling of loss of self, not physical abuse

• Myth: coercive control doesn’t harm the kids

• The effect of coercive control is cumulative

• Coercive control is just as dangerous with or without the physical abuse

• Coercive control is the most dangerous form of abuse, victim survivors want us to know that they want to protect the kids from people that are obsessive - ‘I wish he would just hit me’

• Achieving safety and independence is extremely difficult

• Coercive control nature, depriving them of the needs of independence - monitored, violated

• Extreme damage to their sense of self

• Insult to their humanity and autonomy

• Almost always perpetrated by men in heterosexual couples

• Perpetrators read from the same hand book - monitoring, sexual abuse (rape), isolation, making you feel that your crazy, walking on egg shells, becoming convinced that you are an unlovable person

• Lead victim to accept a standard that they would have otherwise rejected

• Coercive control can be a pattern of entrapment

How to Run and Defend a Financial Claims Arising from Family Violence

Presented by the Hon. Mr Garry Watts AM this session looked at how you run a Kennon case?

Key takeaways:

• Be familiar with the case law from Kennon to date. See in particular recent cases of Benson & Drury [2020] FamCAFC 303 (holistic assessment of contributions) and Sweet & Sweet [2022] FedCFamC2F 676 (27 May 2022 (which put to bed the floodgates argument).

• Things to consider when acting for the Applicant including:

  • Importance of obtaining instructions from clients as to family violence issues in a professional and sensitive way

  • Corroboration is not necessary but is useful (eg police records, medical records communications). If there is evidence available and not called upon then adverse inferences may be made.

• Where there are self-represented parties, be aware of the Section 102NA and the Family Violence and Cross Examination Scheme

• Things to consider when acting for the Respondent including:

  • If there is an alternative narrative, develop it

  • Full and frank disclosure

  • Right of silence and certificate under section 128 of the Evidence Act (NSW)

  • Object to sloppy affidavits

  • Applicant’s ability to function at normal levels

  • Alternative expect medical evidence

• Consider advising on the client making a claim in tort and/or equitable remedy and relevant torts and statute of limitation of 3 years. If you do not advise on other non-family law options, you could be professionally negligent. See damages cases such as:

  • Whitlam & Whitlam (2008)

  • Southon v Ray [2022] NSWDC 32 (24 February 2022)

  • Wilden v Jennings (no 1) [2021] NSWDC 705

  • Rock v Henderson [2021] NSWCA 155 (29 July 2021)

• Consider working with a personal injury lawyer where there are family violence issues as to potential financial claims.

• Consider the “application of State law” in the federal jurisdiction - see Rizeq [2017]

The End of Family Lawyers: Artificial Intelligence?

Presented by Justice Altobelli, Professor Tania Leiman and Gabrielle Canny, this panel discussion considered how artificial intelligence is being used to successfully predict patterns of behaviour and outcomes in law and benefits and challenges of AI.

The panel started with an opening question: “Will artificial intelligence be an essential servant to help do our work effectively and efficiently or will it be a master us or something else?”

The panel discussed the online platform AMICA. AMICA was developed by National Legal Aid with funding from the Commonwealth Attorney General’s Department. It is designed to help amicable couples resolve their own disputes. There are a number of warnings inbuilt in the platform about complexity and legal advice etc. The panel discussed how AMICA is being used by different cohorts of people such as people who may never see a family lawyer, however also being used by people to do an initial assessment before they then speak to a family lawyer. The algorithm for the AI is commercial in confidence (it was questioned why there isn’t open transparency around the algorithm).

Professor Tania Leiman discussed “For better, for worse, technology and family law”. Key takeaways:

• Technology tools help us make processes more streamlined, available, accessible and cheaper

• People going through separation often “Google first” and re-evaluate after

• 60% of people surveyed during the panel discussion said they could use AMICA (or similar tools) as a way to integrate or expand their practice

• Sustainable innovation helps people more quickly, efficiently, cheaply and more accurately

• Lawyer work is now being augmented by tech tools

• Question: “Are Courts a place, space, process or all of these?”. Note the change in Courts since COVID.

• It is important to consider what only a human can do and what should a human do

What does FamilyProperty do? FamilyProperty helps make your family law processes more streamlined, accurate, accessible and efficient. Our goal is to empower you with an easier and more accurate way to prepare, model and document family law outcomes, freeing you up to focus on outcomes.

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A big thank you to the Family Law Section for putting on such a great event!