Latest / The Post-Separation Abuse Podcast / 99. Why your family lawyer can't do what you actually need - and what only you can do

Transcript

99. Why your family lawyer can't do what you actually need - and what only you can do · The Post-Separation Abuse Podcast

• 0:01
  SPEAKER_00: Welcome back to the Post Separation Abuse Podcast.
• 0:04
  SPEAKER_00: I'm your host, Danielle Black.
• 0:08
  SPEAKER_00: Before we get into today's episode, I'd like to invite you to take a moment to take a deep breath in slowly.
• 0:19
  SPEAKER_00: To hold it for a few seconds.
• 0:22
  SPEAKER_00: And then to gently release it.
• 0:26
  SPEAKER_00: To bring your shoulders up to your ears, to hold them there, and then release them.
• 0:31
  SPEAKER_00: Let them drop.
• 0:33
  SPEAKER_00: Unclench your jaw.
• 0:37
  SPEAKER_00: Open and stretch your hands and fingers if it's safe to do so.
• 0:42
  SPEAKER_00: To feel your body soften just a little bit You're here.
• 0:49
  SPEAKER_00: You're safe.
• 0:52
  SPEAKER_00: This is your time for twenty or so minutes.
• 0:57
  SPEAKER_00: Just for you.
• 0:59
  SPEAKER_00: Okay.
• 1:01
  SPEAKER_00: Let's get into it.
• 1:03
  SPEAKER_00: I watched a true crime documentary on Netflix recently and whilst this might sound like a bit of an odd opening for a podcast that is primarily about post-separation parenting, I'd like to invite you to stay with me because something in that documentary got me thinking not necessarily about the crime itself but of what it illustrated about how adversarial legal systems actually work.
• 1:33
  SPEAKER_00: Part of the documentary follows a murder trial.
• 1:37
  SPEAKER_00: The evidence against the accused was by any reasonable assessment overwhelming.
• 1:44
  SPEAKER_00: Physical evidence, forensic evidence, behavioral evidence, the kind of post offense conduct that in ordinary life would leave very little room for doubt.
• 1:56
  SPEAKER_00: And yet the defence team argued vigorously and relentlessly for their client's innocence through all of it, against the weight of everything that the prosecution presented.
• 2:08
  SPEAKER_00: Whilst I was watching it, I was thinking this looks absurd to the point of almost being offensive.
• 2:17
  SPEAKER_00: But the fact that these lawyers were arguing something that the evidence so clearly contradicted and then I started thinking about the family law system and the fact that in an adversarial legal system it's really not absurd at all.
• 2:36
  SPEAKER_00: Rather it's exactly what those lawyers were supposed to do.
• 2:41
  SPEAKER_00: That realization, that insight about what lawyers are for and are not for is at the heart of everything that I want to unpack with you today.
• 2:52
  SPEAKER_00: The legal systems that many of us live under in Australia, the UK, the US, across most of the developed world are adversarial in design.
• 3:04
  SPEAKER_00: That means that they operate on a specific theory that the best way to reach a just outcome is to have two opposing advocates, each arguing as vigorously as possible for their side with a neutral decision maker adjudicating between them.
• 3:24
  SPEAKER_00: The defense lawyer's job in a criminal trial is not to find the truth.
• 3:30
  SPEAKER_00: It's not to seek justice in the broad sense of that word.
• 3:35
  SPEAKER_00: Rather it's to advocate zealously for their clients' legal interests within the bounds of what the system and the law permits.
• 3:45
  SPEAKER_00: That is their job, that is what they are trained to do, that is what they are paid to do.
• 3:52
  SPEAKER_00: The prosecution's job is the mirror image to present the strongest possible case for the other side.
• 3:59
  SPEAKER_00: And the theory of the system is that truth and justice will emerge from the collision of those two vigorous advocates in front of a neutral decision maker.
• 4:14
  SPEAKER_00: Now in criminal law, that system does have logic.
• 4:19
  SPEAKER_00: Yes, it's imperfect.
• 4:21
  SPEAKER_00: Anyone who has spent any time looking at wrongful convictions or at cases where guilty people walk free knows that it's imperfect.
• 4:32
  SPEAKER_00: But the logic is there.
• 4:34
  SPEAKER_00: The stakes of a criminal conviction are also enormous, loss of liberty, having a criminal record, the full weight of the state brought to bear on an individual, and so the threshold for conviction is high, rightly so, and the defense advocate's role is to hold that threshold firmly.
• 4:55
  SPEAKER_00: Family law is also an adversarial system.
• 4:59
  SPEAKER_00: It uses much the same structure, two opposing advocates, a neutral decision maker, and a process that is fundamentally about two sides arguing.
• 5:10
  SPEAKER_00: But the thing being decided is completely different.
• 5:13
  SPEAKER_00: It's not about guilt or innocence, it's not about criminal liability.
• 5:18
  SPEAKER_00: It is in theory about what a child needs, about what arrangements will best serve the well being, safety and development of a human being who didn't have any say in any of this.
• 5:31
  SPEAKER_00: An adversarial system designed to adjudicate between two competing adult legal interests is a very poor mechanism for determining any of that.
• 5:43
  SPEAKER_00: Now this is not a criticism of lawyers, rather it's an observation about the design of the system that they work within.
• 5:52
  SPEAKER_00: And understanding that design is one of the most important things that you can do as a parent navigating it.
• 5:59
  SPEAKER_00: I want to be really clear about this next part because what I see a lot in my work is that there is a huge gap between what parents expect from their lawyers and what their lawyers are actually designed to provide.
• 6:16
  SPEAKER_00: That gap can be one of the most consistent sources of confusion, frustration, and heartbreak that I see in my work.
• 6:27
  SPEAKER_00: The truth is that your lawyer's job is to protect your legal interests, to advise you on the law, to represent your position in the family law proceedings, to navigate the procedural requirements of the system on your behalf.
• 6:43
  SPEAKER_00: That is significant and important work.
• 6:45
  SPEAKER_00: I'm certainly not saying otherwise.
• 6:48
  SPEAKER_00: But there are things that your lawyer is not trained to do and not tasked with doing.
• 6:54
  SPEAKER_00: And it is worth understanding those things.
• 6:58
  SPEAKER_00: Your lawyer is not trained in child development.
• 7:02
  SPEAKER_00: They are not equipped to assess whether a particular parenting arrangement reflects what the attachment research says about a four-year-old's needs.
• 7:10
  SPEAKER_00: They are not a child psychologist, a developmental specialist, or a trauma-informed clinician.
• 7:16
  SPEAKER_00: Your lawyer is not trained in identifying coercive control.
• 7:20
  SPEAKER_00: They may have some awareness of family violence in a legal sense, but in a specific, nuanced, pattern-based understanding of how coercive control operates, and in particular how it can continue post-separation and how it can affect children, how it can be present in ways that are invisible to practitioners who don't know what to look for.
• 7:41
  SPEAKER_00: That's just simply not what they learn as part of their journey to becoming a lawyer.
• 7:47
  SPEAKER_00: Your lawyer is not responsible for educating the other parent, and your former partner's lawyer is not responsible for educating them either.
• 7:59
  SPEAKER_00: Parents can be very bewildered when the lawyer for the other side isn't pointing out to their client that the arrangement that they're demanding is not child focused, that the other parent's lawyer isn't explaining why fifty fifty for a child is not in the child's best interests, that the lawyer for the other side is not a voice for reason and child welfare in their client's ear.
• 8:24
  SPEAKER_00: But the fact is that that is not their job.
• 8:27
  SPEAKER_00: It never has been their job.
• 8:29
  SPEAKER_00: It's probably never going to be their job unless the system changes dramatically.
• 8:36
  SPEAKER_00: The other side's lawyer is there to advocate for the other parent's legal position as vigorously as the system permits.
• 8:44
  SPEAKER_00: That is the adversarial system working exactly as it's designed.
• 8:49
  SPEAKER_00: It's not a failure of that lawyer's ethics or their humanity, rather it's the system doing what the system does.
• 8:57
  SPEAKER_00: When you understand that, when you genuinely absorb it and take it on rather than just intellectually acknowledging it, when you stop waiting for the legal process to prioritize what your children need, you can start asking a different question.
• 9:17
  SPEAKER_00: If the system isn't going to do it by default, who is?
• 9:22
  SPEAKER_00: While we're talking about the things that the legal system is not designed to do, I want to address the family report because I think there's also a similar misunderstanding here that can cost protective parents enormously.
• 9:36
  SPEAKER_00: The reality about report writers is that they are not your advocate.
• 9:40
  SPEAKER_00: They are not there to validate your experience, to confirm your account of events, or to support what you are seeking in an outcome.
• 9:51
  SPEAKER_00: They are there to conduct an assessment and make a recommendation.
• 9:55
  SPEAKER_00: That is a different function entirely.
• 9:58
  SPEAKER_00: And something that I think most parents are not aware of enough, not told enough is that the family report recommendation is not binding on the judge.
• 10:09
  SPEAKER_00: The judge must consider all evidence before the court at final trial.
• 10:14
  SPEAKER_00: They are absolutely not obligated to follow the family report writer's recommendations, and they can and regularly do reach different conclusions.
• 10:24
  SPEAKER_00: This is really important to be aware of because so many parents are often hearing from their own lawyers that quote, the family report has significant weight.
• 10:36
  SPEAKER_00: Now I'm not saying that it doesn't have weight, but again, it's one piece of evidence.
• 10:45
  SPEAKER_00: And it's not necessarily any more significant than other such pieces of evidence, it's not necessarily any more significant than any other professional report.
• 10:59
  SPEAKER_00: It's not necessarily any more significant than cross examination at a final trial, for example.
• 11:07
  SPEAKER_00: It is one piece of evidence.
• 11:10
  SPEAKER_00: The reality also is that the rate of alignment between family report recommendations and judicial judgments is lower than what most people realize.
• 11:22
  SPEAKER_00: It's well established in the case law that judges weigh family report recommendations alongside all other evidence and final trial outcomes regularly diverge from what a report writer has recommended.
• 11:38
  SPEAKER_00: That is the judge decides something different than what the report writer recommended.
• 11:47
  SPEAKER_00: Family report writers can also be cross-examined at trial.
• 11:51
  SPEAKER_00: They can be given an opportunity to revise their recommendations.
• 11:57
  SPEAKER_00: And to be honest, for some, this is absolutely crucial for them maintaining any shred of credibility or professional standing.
• 12:07
  SPEAKER_00: This can be an important part of the process, their assessment, their methodology, their conclusions, all of this can be tested.
• 12:16
  SPEAKER_00: The report is not a closed document, it is evidence, and like all evidence, it can absolutely be challenged by a well-prepared legal team.
• 12:28
  SPEAKER_00: This matters enormously because one of the most demoralizing moments in the family law journey is receiving a family report that doesn't reflect your reality, that mischaracterizes you, that misses what you know to be true about your children's experience.
• 12:44
  SPEAKER_00: And too many parents, and frankly too many legal teams, treat that report as the final word, as a judgment, as something settled, as a decision.
• 12:56
  SPEAKER_00: But it is not the final word.
• 12:58
  SPEAKER_00: It is simply part of the next phase.
• 13:01
  SPEAKER_00: But and this is important, challenging a family report effectively requires preparation, evidence, and a legal team that understands how to best interrogate it.
• 13:15
  SPEAKER_00: Which brings me to something else important that I really want to share with you today.
• 13:20
  SPEAKER_00: If the legal system is not designed to bring to the surface what your children need by default, if your lawyer's job is your legal interests rather than your children's developmental needs, if the report writer is not your advocate, then who's carrying the important knowledge about your children and what they need into the room?
• 13:45
  SPEAKER_00: You do.
• 13:47
  SPEAKER_00: Not as the legal expert you likely have a lawyer for that, but as the expert in your child, the evidence experts, the research experts, the person in these proceedings who knows more about your specific children, their needs, their history, their developmental stages, their attachment, the impact of what they have lived through.
• 14:13
  SPEAKER_00: You know more about that than anyone else in the room.
• 14:18
  SPEAKER_00: This is what I mean when I talk about building knowledge as the foundation of everything else.
• 14:24
  SPEAKER_00: It's not about becoming a lawyer.
• 14:26
  SPEAKER_00: It's about becoming the person who can speak to the research on what children need at your child's age, who can document patterns of behavior specifically and factually in the language that lands best with professionals, who can walk into a family report interview and demonstrate genuine child focused thinking rather than adult grievance, who understands the system well enough to navigate it strategically rather than stumbling through it in good faith and hoping for the best.
• 15:00
  SPEAKER_00: The parent who brings that expertise into proceedings is not dependent on the system to see what they can see.
• 15:09
  SPEAKER_00: Rather, they're presenting it, they're making it impossible to ignore, because the evidence exists, it's documented, and the person presenting it understands it and can speak to it clearly and credibly.
• 15:24
  SPEAKER_00: That is a fundamentally different position to the parent who is waiting for their lawyer to fix it, or for the report writer to get it right, or for the other side to eventually see reason.
• 15:37
  SPEAKER_00: The truth is that no one else is going to do this work.
• 15:42
  SPEAKER_00: You are the only person in these proceedings who is specifically motivated to build this expertise and to use it on behalf of your children.
• 15:52
  SPEAKER_00: That is both the hard truth and the most empowering thing I can tell you.
• 15:58
  SPEAKER_00: And it's important that we make this even more concrete because I think telling you to simply become the expert can sound a little bit abstract until you actually understand what it means in the day-to-day reality of navigating proceedings.
• 16:13
  SPEAKER_00: It means understanding the developmental research, knowing what the evidence says about parenting arrangements for different children at different ages and stages.
• 16:23
  SPEAKER_00: It means being able to speak specifically to why a proposed arrangement does or doesn't reflect what your child needs, not from a place of adult preference, fairness or convenience, but from a place of evidence.
• 16:37
  SPEAKER_00: It means being able to document the patterns of behavior, not just one off incidents.
• 16:46
  SPEAKER_00: The family law system is not interested in an endless list of things that happened.
• 16:51
  SPEAKER_00: It is far more interested in patterns, sustained, documented, observable patterns of behaviour and their impact on children.
• 17:01
  SPEAKER_00: The parent who can present that evidence clearly and factually is in a much different position to the parent who presents as emotionally overwhelmed by a series of events that they can't connect into a coherent picture.
• 17:15
  SPEAKER_00: It means understanding what a report writer is actually assessing and preparing for that assessment at the level of your nervous system as well as your facts.
• 17:27
  SPEAKER_00: Because the parent who walks into that room dysregulated, however right they are about everything, is presenting differently to the one who's regulated, specific, and genuinely child focused.
• 17:40
  SPEAKER_00: And that difference is registered by the report writer, whether it's named in the report or not.
• 17:47
  SPEAKER_00: It means knowing what the adversarial system is and is not designed to do, which is what we've been talking about today.
• 17:56
  SPEAKER_00: So that you stop expecting the wrong things from the wrong people and start directing your energy towards what you can actually build and control.
• 18:05
  SPEAKER_00: It also means understanding that the family report is not the last word, that final trial is where the evidence is weighed, and that a well-prepared parent with a well-prepared legal team who has built the knowledge, the capacity and the advocacy skills, that parent has a genuinely different experience of the process.
• 18:27
  SPEAKER_00: None of this is automatic, all of it is buildable, and the building of it, module by module, piece by piece, is exactly what the post-separation parenting blueprint was designed to support.
• 18:41
  SPEAKER_00: Before we wrap up today's episode, I want to close with something that I think is worth reflecting on.
• 18:50
  SPEAKER_00: The documentary that I mentioned at the opening stayed with me not just because of the crime, but because of what it clarified about the systems, because of the reflection that it led to me doing about systems.
• 19:06
  SPEAKER_00: Legal systems are not truth-seeking machines.
• 19:10
  SPEAKER_00: They are adversarial processes that at their best produce just outcomes through the collision of competing arguments.
• 19:20
  SPEAKER_00: At their worst, they produce outcomes that have very little to do with what actually happened, or in the family law context, with what children actually need.
• 19:32
  SPEAKER_00: And understanding that is not a reason to despair, rather, it's a reason to prepare, to know what the system is, to know what it can and cannot be expected to deliver, and to stop waiting for lawyers, report writers or the process itself to do the work that only you can do.
• 19:54
  SPEAKER_00: Your children truly do need you to be the expert, not the legal expert, you have a lawyer for that.
• 20:01
  SPEAKER_00: But the expert in your children, the expert in the evidence about what your children need.
• 20:08
  SPEAKER_00: The one person in the room who knows and can demonstrate what your children need.
• 20:13
  SPEAKER_00: That is the work, and you are capable of it.
• 20:18
  SPEAKER_00: I want to give you a brief heads up about something because I think it's the kind of information that can be really useful to have in advance.
• 20:27
  SPEAKER_00: The post separation parenting blueprint, the comprehensive resource that covers everything that we've talked about today and so much more, is going up in price in the near future.
• 20:40
  SPEAKER_00: It has been expanded since its first launch, and the price is moving to reflect that.
• 20:48
  SPEAKER_00: The post separation blueprint also includes unlimited access to AI Danielle, a 24 7 specialist coaching resource trained in my frameworks and methodology, available to all blueprint members with unlimited messaging.
• 21:05
  SPEAKER_00: She's there at 3 AM when you can't sleep.
• 21:08
  SPEAKER_00: She's there before the mediation session when you need to think something through.
• 21:13
  SPEAKER_00: She's there at Friday at six PM when that legal letter lands in your inbox.
• 21:18
  SPEAKER_00: Blueprint members have unlimited access to her as part of their investment.
• 21:24
  SPEAKER_00: If you've been sitting on the fence about the blueprint or if today's episode has made it feel more relevant now than ever, now is a good time to take action.
• 21:35
  SPEAKER_00: You deserve to have the information so that you can make decisions that are right for you and your family, so that you can advocate for yourself and your children.
• 21:45
  SPEAKER_00: You'll find the blueprint at Danielle Blackcoaching.com.au and if you want to get a sense of AI Danielle, she's available on the website right now.
• 21:58
  SPEAKER_00: You can interact with her.
• 22:00
  SPEAKER_00: On a limited capacity, you can find her by going to the Services drop-down menu in the main navigation and scrolling to Meet AI Danielle.
• 22:12
  SPEAKER_00: Thank you so much for being here with me for this conversation.
• 22:16
  SPEAKER_00: I value your time and I appreciate that you're making space for new ways to look at your situation.
• 22:22
  SPEAKER_00: That's so important and meaningful.
• 22:24
  SPEAKER_00: I'll look forward to chatting with you again soon.