Latest / The Post-Separation Abuse Podcast / 108. Working as intended - Part 1: What your lawyer was taught (and what they weren't)

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108. Working as intended - Part 1: What your lawyer was taught (and what they weren't) · The Post-Separation Abuse Podcast

• 0:00
  SPEAKER_00: Hi there.
• 0:02
  SPEAKER_00: Welcome.
• 0:03
  SPEAKER_00: Before we get into today's episode, I'd like to invite you to take a moment to breathe in slowly and deeply.
• 0:12
  SPEAKER_00: To hold it for a few moments.
• 0:15
  SPEAKER_00: And then release it.
• 0:18
  SPEAKER_00: To bring your shoulders up to your ears, to hold them there.
• 0:23
  SPEAKER_00: Then let them drop.
• 0:26
  SPEAKER_00: Feel the tension ease just a little bit.
• 0:30
  SPEAKER_00: Unclench your jaw.
• 0:32
  SPEAKER_00: Open your hands and flex your fingers if it's safe to do so.
• 0:37
  SPEAKER_00: Feel your body start to soften.
• 0:41
  SPEAKER_00: Because right now, whatever is happening in your life, you're safe in this moment.
• 0:47
  SPEAKER_00: Let that land for a second.
• 0:52
  SPEAKER_00: Welcome back to the Post-Separation Abuse Podcast.
• 0:54
  SPEAKER_00: I'm Danielle Black.
• 0:56
  SPEAKER_00: Today's the first of four episodes in a series that I'm calling Working as Intended.
• 1:04
  SPEAKER_00: The Australian family law system, in my view, is not broken.
• 1:09
  SPEAKER_00: Rather, from everything that I've seen in the work that I do and from everything that I understand about the system, both from the inside as someone who has lived it, but also as a professional working on the outside, what I've noticed is that it is working exactly as it was designed to work.
• 1:27
  SPEAKER_00: And the problem is what it was designed for, and who it was designed for.
• 1:32
  SPEAKER_00: The Australian family law system was built to adjudicate disputes between adult parties.
• 1:39
  SPEAKER_00: It was built to resolve property, to allocate parenting time, to produce court orders.
• 1:46
  SPEAKER_00: It was not built, not at its core, not at the foundations, not in the training of the professionals who work inside it, and not in the design of the court proceedings themselves to see children.
• 2:01
  SPEAKER_00: The quote, best interests of the child was laid onto an architecture that was really never about children to begin with.
• 2:11
  SPEAKER_00: And when we ask that architecture to do something that it was never built to do, it produces predictably the outcomes that we often see.
• 2:21
  SPEAKER_00: Calling the family law system broken implies that it was once working, or that it was designed to work in a way that has since failed.
• 2:32
  SPEAKER_00: But it hasn't.
• 2:35
  SPEAKER_00: And calling it rigged implies that someone somewhere rigged it against you.
• 2:41
  SPEAKER_00: They didn't.
• 2:42
  SPEAKER_00: Not really.
• 2:43
  SPEAKER_00: The truth is bigger and often quieter than either of those things.
• 2:48
  SPEAKER_00: And it's so much harder to face because reform doesn't follow from tinkering with something that is functioning as it's actually designed.
• 2:57
  SPEAKER_00: Reform, if it's ever going to come, has to address the foundations.
• 3:02
  SPEAKER_00: And that's what this podcast series is about.
• 3:06
  SPEAKER_00: Four episodes, each looking at the foundations.
• 3:11
  SPEAKER_00: Today, part one is about what your lawyer was taught, and equally what they were not.
• 3:18
  SPEAKER_00: About the foundations of the people who advise on the most important decisions of your life.
• 3:23
  SPEAKER_00: And about why understanding the training gap matters, not as a complaint, but as a starting point for what you can do with that information.
• 3:35
  SPEAKER_00: I want to address a question.
• 3:37
  SPEAKER_00: It's a question that I hear on a fairly regular basis in coaching sessions, from people who have listened to the podcast, from parents who have been in the system for years, and who have done enough of their own research and legwork to know that there's something just not quite adding up in the system.
• 3:59
  SPEAKER_00: The question in its most common form is Danielle, if what you're saying about the research is true, why doesn't my lawyer know it?
• 4:13
  SPEAKER_00: Why doesn't my lawyer know what the developmental science says about attachment?
• 4:18
  SPEAKER_00: Why doesn't my lawyer understand coercive control?
• 4:21
  SPEAKER_00: Not as a legal concept, but as a lived pattern with specific harmful impacts on children.
• 4:29
  SPEAKER_00: Why does my lawyer keep talking about what the court is likely to order about risk management for me, the adult in the legal proceedings, while seeming to be entirely disinterested in what the research says my kids actually need?
• 4:50
  SPEAKER_00: That's a very reasonable question.
• 4:53
  SPEAKER_00: And the answer, the honest answer, is not at all reassuring, but it's still important.
• 5:00
  SPEAKER_00: And understanding it changes everything about how you navigate what you're navigating.
• 5:06
  SPEAKER_00: The short answer is your lawyer doesn't know it because they were never required to learn it.
• 5:12
  SPEAKER_00: Not in their degree, not in their practical training, not in their ongoing professional development.
• 5:18
  SPEAKER_00: The system that produces family lawyers in Australia was not built to include this knowledge, and a system that doesn't require something, frankly, is not going to reliably produce it.
• 5:31
  SPEAKER_00: Today we're diving into something that I think every parent navigating the family law system deserves to know.
• 5:39
  SPEAKER_00: But it's something that almost none of them do.
• 5:42
  SPEAKER_00: I want to talk about what your lawyer actually learned to become a lawyer.
• 5:48
  SPEAKER_00: What the person appointed to represent your children's best interests was trained in before they got that role, and how the system that is making decisions about your children's lives came to be built the way that it was built.
• 6:02
  SPEAKER_00: By whom?
• 6:03
  SPEAKER_00: For whom?
• 6:05
  SPEAKER_00: And with what assumptions about children are baked into its foundations.
• 6:10
  SPEAKER_00: Now, fair warning, some of what we're going to be talking about might make you angry.
• 6:17
  SPEAKER_00: I know it made me angry when I was researching it, not in a generalized, frustrated way, but in a very specific, this is documented and verifiable kind of way.
• 6:28
  SPEAKER_00: The kind of anger that can be useful when it's aimed at the right target.
• 6:34
  SPEAKER_00: This is part one of four.
• 6:38
  SPEAKER_00: Today I'm covering the history and the training.
• 6:41
  SPEAKER_00: In part two, which is releasing next week, I cover what it means for how the system makes decisions about your children right now and what you can do about it.
• 6:55
  SPEAKER_00: In part three, we're going even deeper and a little bit broader, in the sense that the problem that we're going to be unpacking in this series does not stop at the legal system, but rather it extends throughout the entire post-separation industry.
• 7:14
  SPEAKER_00: An industry which is large and growing, that's full of coaches, programs, practitioners, and credentials that use the language of child well-being and welfare whilst operating from a framework that is not built on any of the developmental research or science.
• 7:37
  SPEAKER_00: And then in episode four of this series, we're going to look at where all of the information intersects.
• 7:47
  SPEAKER_00: The fact that you still need a lawyer, you still need to be working with other post-separation professionals if you end up in the court system in particular.
• 7:55
  SPEAKER_00: We oftentimes don't have the option to opt out of the system entirely.
• 8:01
  SPEAKER_00: So what do we then do with everything that we now know?
• 8:06
  SPEAKER_00: That's what episode four is going to be about.
• 8:08
  SPEAKER_00: So I invite you each week to be tuning into the podcast.
• 8:12
  SPEAKER_00: It is available on Apple Podcasts, Spotify, Amazon Music, and also on YouTube.
• 8:19
  SPEAKER_00: Please join me on any or all of those platforms.
• 8:23
  SPEAKER_00: And please also recommend this podcast to someone else in your world if you think there's someone that needs to hear what we're talking about.
• 8:33
  SPEAKER_00: When parents come to me or to another coach on our team, in the early stage of separation, they can often be focused on the strategy, what they should be saying, what they should be documenting.
• 8:48
  SPEAKER_00: If they're in the court system, they might be wanting to know well, how should they be engaging with their lawyer?
• 8:55
  SPEAKER_00: How can they prepare for a family report?
• 8:58
  SPEAKER_00: How to navigate communication with the other parent?
• 9:02
  SPEAKER_00: All of those things are important, and all of us here at Danielle Black Coaching support clients with one or more of those things.
• 9:12
  SPEAKER_00: But there's a question that almost nobody asks, and I think it should be one of the first questions really, that every protective parent ponders.
• 9:22
  SPEAKER_00: What does my lawyer actually know about children?
• 9:28
  SPEAKER_00: Not what do they know about family law, but what do they know about children?
• 9:34
  SPEAKER_00: What do they know about how children develop?
• 9:37
  SPEAKER_00: What do they know about what children actually need to grow up securely attached, emotionally regulated, and psychologically intact?
• 9:47
  SPEAKER_00: What do they know about what happens to a child's developing brain when they're subjected to emotional abuse, to coercive control, or to the sustained stress of a high conflict post-separation environment?
• 10:00
  SPEAKER_00: That is the expertise that should be in the room when important decisions are made about your children's lives, about the parenting arrangements after separation.
• 10:11
  SPEAKER_00: But in the vast majority of cases, that expertise is nowhere in the room.
• 10:17
  SPEAKER_00: It's not even in the car park.
• 10:20
  SPEAKER_00: And here's why.
• 10:21
  SPEAKER_00: To become a lawyer in Australia, you complete a law degree, either a Bachelor of Laws or a jurisdictor, followed by practical legal training and then supervised practice at a law firm.
• 10:36
  SPEAKER_00: The whole pathway can take around five to six years from when you first start your degree to being admitted to practice.
• 10:44
  SPEAKER_00: The foundation of every Australian law degree is a set of eleven mandatory subjects known as the Priestly Eleven.
• 10:54
  SPEAKER_00: Every law school in Australia, all thirty-nine of them, must ensure their students complete these subjects.
• 11:02
  SPEAKER_00: They are a non-negotiable baseline of what every Australian lawyer knows.
• 11:08
  SPEAKER_00: Here's what those eleven subjects are criminal law and procedure, contract law, torts, property law, equity and trusts, administrative law, constitutional law, civil procedure, evidence, company law, ethics and professional responsibility.
• 11:36
  SPEAKER_00: Let's read that again.
• 11:38
  SPEAKER_00: Criminal law, contract law, torts, property, equity and trusts, administrative law, constitutional law, civil procedure, evidence, company law, ethics.
• 11:58
  SPEAKER_00: What's not on the list?
• 12:00
  SPEAKER_00: Family law is not on the list.
• 12:03
  SPEAKER_00: Child development is not on the list.
• 12:05
  SPEAKER_00: Attachment science, family violence, coercive control, child welfare, really anything to do with families and children not on the list.
• 12:17
  SPEAKER_00: Company law makes the list.
• 12:20
  SPEAKER_00: The welfare of kids doesn't.
• 12:23
  SPEAKER_00: A lawyer can complete every single stage of their mandatory training and qualification in Australia, every required subject, every required examination, every required hour of supervised practice without ever having learned a single thing about children, about how they develop, about what they need or about what harms them.
• 12:43
  SPEAKER_00: And then they can choose to practice in family law, the area where decisions about children's lives are made.
• 12:52
  SPEAKER_00: The Priestley 11 was established in 1992.
• 12:57
  SPEAKER_00: It's named after Justice Lancelot John Priestley, a judge of the New South Wales Court of Appeal, who chaired the Law Admissions Consultative Committee that determined what Australian lawyers needed to know.
• 13:11
  SPEAKER_00: Before 1992 there was no national standard at all.
• 13:16
  SPEAKER_00: Every state and territory ran its own admissions system with its own requirements.
• 13:22
  SPEAKER_00: Some lawyers qualified through university degrees, some through articled clerkship, which is essentially apprenticing under a practicing lawyer for five years with no university degree required.
• 13:36
  SPEAKER_00: Whatever that lawyer knew, whatever their biases, whatever the assumptions of the era, well, that's what you absorbed with that process.
• 13:44
  SPEAKER_00: The Priestley 11 was created in response to a big expansion of law schools in the late 1980s, when the Dawkins University reforms created 16 new universities in four years, and suddenly there were dozens of law schools producing graduates under wildly different curricula.
• 14:04
  SPEAKER_00: The profession needed some kind of minimum standard to make sense of it all.
• 14:09
  SPEAKER_00: So a committee of judges and legal admissions board representatives, note, not child welfare experts, not developmental psychologists, not family violence researchers, rather a committee of judges and legal admissions board representatives, they decided what lawyers needed to know.
• 14:30
  SPEAKER_00: And what lawyers needed to know in their considered view was contracts, property, company law, evidence and procedure.
• 14:37
  SPEAKER_00: The most meaningful attempt to update the Priestley 11 happened in 2019.
• 14:43
  SPEAKER_00: The Law Admissions Consultative Committee proposed revisions, not dramatic ones, but the most thorough rewrite that there would have been in the 27 years since 1992, and they announced that the changes would come into effect on the 1st of January 2021.
• 15:02
  SPEAKER_00: In September 2020, they published a brief statement saying that the update had been postponed indefinitely.
• 15:09
  SPEAKER_00: Nothing beyond that, just that it was postponed indefinitely.
• 15:15
  SPEAKER_00: Family law is still not in it.
• 15:17
  SPEAKER_00: It's never been in it.
• 15:18
  SPEAKER_00: And the people who have the power to put it in have now twice, in 1992 and then in 2020, decided not to.
• 15:29
  SPEAKER_00: Interestingly, the Law Admissions Consultative Committee has acknowledged that legal education and law schools have been changing while the Priestly Eleven remained frozen in time and referred to it as being, quote, manifestly undesirable.
• 15:48
  SPEAKER_00: However, they still ultimately chose to postpone the update indefinitely.
• 15:54
  SPEAKER_00: To understand why the system is the way that it is, you need to understand where it came from.
• 16:01
  SPEAKER_00: Because the family law system in Australia, including the assumptions about children, parenting, about what matters, none of it was designed with children at its centre.
• 16:11
  SPEAKER_00: It was designed with marriage at its center.
• 16:15
  SPEAKER_00: Before 1975, obtaining a divorce in Australia required proving fault, not just choosing to separate, but proving that your spouse had done something wrong.
• 16:29
  SPEAKER_00: Adultery, desertion, cruelty, habitual drunkenness, imprisonment or insanity.
• 16:38
  SPEAKER_00: Yes, there's a few of you listening to this probably thinking, yeah, I could have actually proved a few of those things if that was still in play.
• 16:48
  SPEAKER_00: So you needed a lawyer, sometimes you even needed a private investigator, and in defended cases a barrister, it could be very expensive, it could be humiliating, and it could be very, very inaccessible to anyone who didn't have significant money.
• 17:07
  SPEAKER_00: The double standard was also explicit and documented.
• 17:11
  SPEAKER_00: A man could divorce his wife for adultery alone, so her having an affair.
• 17:17
  SPEAKER_00: A woman could only divorce her husband for adultery if she could also prove an aggravated additional ground such as desertion, cruelty, incest or bigamy.
• 17:29
  SPEAKER_00: Yeah, I know.
• 17:31
  SPEAKER_00: Gross.
• 17:32
  SPEAKER_00: Parliament at the time was entirely men.
• 17:36
  SPEAKER_00: They had views about succession, about legitimate children, about what constituted a sufficient grievance, and in isolation as far as they were concerned, women's suffering did not constitute a sufficient grievance.
• 17:53
  SPEAKER_00: In 1975, the Whitlam government introduced the Family Law Act, and that included no fault divorce.
• 18:02
  SPEAKER_00: Rather, there was one single ground for divorce, and that was twelve months of separation.
• 18:09
  SPEAKER_00: The family court, counseling services, those things were introduced, and the stated intention was to try and humanize the system, to remove the vindictiveness of fault-based proceedings, to make separation accessible to people who couldn't afford lawyers and barristers and private detectives to prove fault.
• 18:34
  SPEAKER_00: These were genuinely progressive intentions, and in terms of removing humiliation and often excessive cost from divorce proceedings, that reform was successful.
• 18:49
  SPEAKER_00: But here's what no one talks about.
• 18:52
  SPEAKER_00: One of the primary organized forces pushing for no fault divorce was an organization called the Divorce Law Reform Association, which on the surface sounds very neutral, but really I don't think it was.
• 19:08
  SPEAKER_00: I came across some information from researchers that, as far as they were concerned, they felt that it was functionally a men's rights group, motivated substantially by resentment at the amount of money flowing from husbands to ex-wives under the existing system.
• 19:24
  SPEAKER_00: Some researchers have referred to the Divorce Law Reform Association as functionally being more of a men's rights group that was motivated substantially by resentment at the amount of money that was flowing from husbands to ex-wives under what was then the existing system.
• 19:45
  SPEAKER_00: So on that basis, it sounds as though the reform that modernized Australian family law was possibly partly driven by men who were angry about money, and embedded in that motivation was an assumption that would shape the next 50 years of family law thinking.
• 20:06
  SPEAKER_00: That the interests of parents needed to be balanced against and weighed alongside the interests of children.
• 20:15
  SPEAKER_00: But crucially, the system was not designed for children.
• 20:20
  SPEAKER_00: It was designed for adults, for separating adults.
• 20:25
  SPEAKER_00: Children were an afterthought, and in so many ways I think they still are.
• 20:31
  SPEAKER_00: Let's now bring this back to the present because I don't just want you to feel like this is the history channel.
• 20:38
  SPEAKER_00: Although I hope you're finding this somewhat interesting.
• 20:41
  SPEAKER_00: Let's bring this back to what happens when your lawyer is sitting across from you today.
• 20:47
  SPEAKER_00: Your family lawyer has chosen to practice in family law.
• 20:50
  SPEAKER_00: They have the priestly eleven, the contracts, property, company law, evidence.
• 20:56
  SPEAKER_00: They might have also done additional family law study.
• 21:00
  SPEAKER_00: They might have attended some family law CPD events, they probably know the Family Law Act, case law, procedural requirements, the legislative framework.
• 21:11
  SPEAKER_00: They might be excellent at quote unquote the law.
• 21:17
  SPEAKER_00: But the law in and of itself is not the problem.
• 21:21
  SPEAKER_00: The problem is that the law as it currently operates asks practitioners to make assessments about children's best interests, and the practitioners making those assessments have no guaranteed or expected training in what children's best interests actually look like from a developmental attachment or trauma informed perspective.
• 21:44
  SPEAKER_00: The government has funded$900,000 over four years to develop continuing professional development on coercive control for legal practitioners.
• 21:56
  SPEAKER_00: Four years,$900,000 for the entire Australian legal profession.
• 22:02
  SPEAKER_00: And it's available, but to my knowledge, it's not mandatory, which means that a lawyer can choose to do it and it may count towards their annual professional development requirement, or they can complete their CPD requirement through case law updates and legal ethics seminars.
• 22:25
  SPEAKER_00: Either one, perfectly acceptable, either one counts.
• 22:30
  SPEAKER_00: And the CPD requirement itself, the ongoing professional development that every Australian lawyer must complete each year, has no mandatory content on child development, attachment science, developmental psychology, or trauma-informed practice.
• 22:47
  SPEAKER_00: None.
• 22:48
  SPEAKER_00: So a family lawyer can complete 30 years of professional development or more without ever actually formally engaging with information, with research, with content about what children actually need.
• 23:06
  SPEAKER_00: Now this is not a criticism of individual lawyers.
• 23:10
  SPEAKER_00: Some family lawyers are deeply informed, genuinely child focused, and do extraordinary work.
• 23:17
  SPEAKER_00: I know because I have conversations with them.
• 23:20
  SPEAKER_00: The problem is structural.
• 23:23
  SPEAKER_00: The training framework does not require them to be deeply informed or genuinely child-focused.
• 23:31
  SPEAKER_00: And a system that doesn't require it is not reliably going to produce it very often.
• 23:39
  SPEAKER_00: I'm not saying that family lawyers are bad people.
• 23:42
  SPEAKER_00: I'm not saying that they don't care about the families that they work with.
• 23:46
  SPEAKER_00: But what I am saying is that the mandatory training pathway that produces every Australian lawyer was designed in 1992 by a committee of judges and legal administrators, and it does not include family law or anything to do with children.
• 24:03
  SPEAKER_00: It has not been meaningfully updated in 33 years, and it produces practitioners who structurally and systematically are not at all required or expected to know what children actually need.
• 24:18
  SPEAKER_00: And that is the system making decisions about our children's lives.
• 24:26
  SPEAKER_00: Most family lawyers are working hard, doing their best inside the architecture that they have to work with.
• 24:34
  SPEAKER_00: The argument is structural.
• 24:37
  SPEAKER_00: The training is the training, the system is the system, and if we want different outcomes for our children, the foundations themselves have to change.
• 24:47
  SPEAKER_00: In my view, that has to include a stringent set of minimum standards for those seeking to practice family law.
• 24:56
  SPEAKER_00: Real mandated training in the things that this work actually requires.
• 25:02
  SPEAKER_00: But that's a much longer conversation.
• 25:08
  SPEAKER_00: Before we finish up, I want to share something that I came across recently.
• 25:12
  SPEAKER_00: A law student had posted on an Australian legal subreddit asking a simple question.
• 25:20
  SPEAKER_00: Should I bother choosing family law as an elective?
• 25:25
  SPEAKER_00: The answers from practicing lawyers tell us everything that we need to know.
• 25:30
  SPEAKER_00: One Redditor commented, quote, No is the short answer.
• 25:35
  SPEAKER_00: Even if you want to be a family lawyer, it's not a necessity.
• 25:39
  SPEAKER_00: You'll learn more in your first month on the job.
• 25:42
  SPEAKER_00: That comment was upvoted twelve times.
• 25:45
  SPEAKER_00: Another commenter replying directly to that message that I just read out.
• 25:51
  SPEAKER_00: Quote, I practice in family law and I endorse this message.
• 25:56
  SPEAKER_00: Smiley face.
• 25:58
  SPEAKER_00: That was upvoted fifteen times from someone saying that they are a practicing family lawyer.
• 26:05
  SPEAKER_00: Another commenter, quote, I didn't study it at uni 13 years after graduation now, and family law is about 30% of my current workload.
• 26:16
  SPEAKER_00: I learned everything on the job or at CPD courses.
• 26:22
  SPEAKER_00: Shocked?
• 26:23
  SPEAKER_00: Surprised?
• 26:25
  SPEAKER_00: I'm not.
• 26:26
  SPEAKER_00: That's lawyers, the profession, describing itself.
• 26:32
  SPEAKER_00: The lawyers currently practicing family law in Australia telling a law student that the academic foundation of family law is optional, that the work can be picked up after the fact, that the formal training is by their own account not necessary.
• 26:50
  SPEAKER_00: Now, this is not a controversy, this is not a critique from the outside, it's the system.
• 26:58
  SPEAKER_00: In that conversation on Reddit, that was the system being honest with itself when it thinks that no one's watching.
• 27:05
  SPEAKER_00: For now, you know how the people advising you were prepared.
• 27:10
  SPEAKER_00: In part two, I'm going to talk about the independent children's lawyer, who they are, what they're actually trained in, and why the excitement many parents feel when one is appointed is often replaced by something else entirely.
• 27:26
  SPEAKER_00: I'm also going to talk about the most important argument in this space that I don't hear anyone else making, and that is the idea that the old system, as sexist and inadequate as what it was in many ways, kind of accidentally produced child protective outcomes that the reform system has dismantled and what that means for how we think about what kids actually need.
• 27:48
  SPEAKER_00: Part two is coming out next week.
• 27:51
  SPEAKER_00: I invite you to join me for that.
• 27:54
  SPEAKER_00: Thank you so much for being here with me for this conversation.
• 27:58
  SPEAKER_00: As always, I really value your time and appreciate that you're making space for new ways to look at your situation and the system.
• 28:09
  SPEAKER_00: If you found this episode interesting, insightful, if you think that there's anything in this episode or in the post-separation abuse podcast more broadly that could be of benefit to anyone in your world, please do let them know about it.
• 28:28
  SPEAKER_00: Someone else having access to the kinds of things that we talk about here could make a really big difference to their protective parenting journey.
• 28:38
  SPEAKER_00: I look forward to chatting with you again soon.