Few people understand family law challenges as well as barrister Heather Breeze. And even fewer understand the solutions.
In Australia, where she practises law, Breeze says the family courts are extremely busy places.
“The divorce and separation rates are incredibly high compared to just a few years ago,” she says. “The number of children in the courts in Australia is saddening.”
Specialising in family law, Breeze isn’t sure how many times a day she sees debilitated parents come to court calling, “I’ve got rights. I need to be able to spend time with my child. That’s my right.”
But when it comes to the courts, she has to explain to her clients that unfortunately, parents simply have no rights.
Incredible as it may seem, Breeze is spot on. In most jurisdictions, rights belong quite rightly to the children, and the role of the family court is to determine which parent is best suited to care for the child, and to go about the business of divvying out access.
“Parents have no legislative entitlement to spend time with their child, but they have every obligation to support the child. A court will never approach any sort of arrangements in relation to a child’s residence with the idea that a parent has a right to their child,” Heather Breeze explains.
Family law focuses on the child’s needs
The courts, she says, are mandated to look through the emotions of parents. But it’s understandable that they do, since their primary objective is the needs of the child.
“Yet the desires of the parents can’t be ignored. Of course parents believe that they’ve got a right to spend time with a child,” she says.
Heather Breeze is a mother herself and has successfully raised five children with her husband, fellow lawyer and soccer refereeMatthew Breeze. Her youngest is now 12 and her oldest is 19.
“So I know a lot about children,” says Breeze. “I know a lot about families. And I know a lot about the law and the way the law works.”
How Heather Breeze sees the family in action
If two people are getting a divorce and fighting over the living arrangements of their child, first the courts decide which parent the child should reside with. The decision is informed by an algorithm that essentially measures responsibility. Then the courts take a family’s property and put it in a property pool. Next, the courts split that pool into two separate houses. That’s the basic formula. And there’s a reason for it.
“You have to take a child and make the whole thing work in two separate houses. The outcome is diabolical — it’s always diabolical,” says Breeze, who understands why the law has developed this way.
“Clients might feel that their case is unique and that their case is the most horrendous set of circumstances that’s ever been before anybody in a court of law. But – unfortunately – I could tell them that there are a hundred other matters in the docket this week which are exactly the same,” Breeze says, explaining that by necessity, and to treat all parties fairly, Federal Parliament Needed to design a formula that can be applied thousands of times a year to a level of fairness and equitability that’s comfortable for society as a whole.
But that’s not to make light of the plights of clients — quite the opposite. Heather Breeze knows the way the courts work and how to get the best for her clients within the framework in which she operates. She just thinks many families could benefit from a different framework.
“The court will, must, take a pragmatic approach and put you through an algorithm, and you’ll come out the other side,” she says. “It’s a reasonable approach for society, but as we all know, every family is different. Every child is unique. ”
There is a better way, says Heather Breeze — and that’s alternative dispute resolution.
The ‘Gold Standard’ Breeze prefers
ADR is a set of methods for resolving disputes by helping parties come to a mutually acceptable agreement — at least compared to the courts.
There are four main types of ADR: arbitration, neutral evaluation, settlement conferences, and mediation. For family disputes, Breeze is particularly fond of — and experienced in — mediation.
In court, parties must submit to the court’s algorithm and be one of a hundred cases in the docket that week. And while each case is devastating in its own way to the concerned parties, the court doesn’t see it that way.
“The court needs to manage each case fairly and consistently,” says Breeze.
She recommends people take family matters out of the court system and into mediation.
“It’s far better for all parties involved to work with highly experienced people like me who know what will happen to you in the mediation process. And you know what will happen in the court process, You can find your own resolution,” she says. “I don’t know how anyone would voluntarily go through the court process — and it is a voluntary process. No one is compelled to start these proceedings in the family court. It serves a purpose as a place of last resort, but it is unquestionably the last place that any family would ever want to be.”
ADR is relatively new in family law, but it has long roots in conflict resolution between countries and corporations, who have always recognized the value of keeping disputes out of the courts.
“Negotiating contractual disputes between multinationals using ADR has been in place for decades,” says Breeze, adding that the benefits of out-of-court mediation and negotiation not only include a potentially better outcome for all parties, but also reduced costs, shorter resolution time frames, and less stress.
“It’s definitely the gold standard,” says Breeze. “The court of law is the last resort.”
