Don't get Court in the wrong swimwear!
It was reported earlier this year that the actor Robin Williams was committing to a collaborative family law process. This is a non confrontational and respectful method which will avoid court room clashes and highly publicised coverage. The McCartney divorce was by contrast a very public affair and Heather Mills had a strong disagreement with the Judge about what was to be made public and what should remain private. How secretive is our court process? What does fall within the public domain?
We all know how important first impressions are. None more so than in a court of law. How we present ourselves can instantly strike a positive cord or send a negative message. It can be hard to change an impression once formed. Even so, we all have to take the plunge, particularly when the subject matter concerns our personal lives. How much we are all willing to reveal is likely to be different – will it be the bikini or one piece swimsuit this summer – now let’s see ...
What will it be?
There is a conflict between the principles of openness and privacy which is not easy to reconcile. My job as a family lawyer means that I am constantly dealing with all manner of conflicts with the balance between private family life and public knowledge, an especially thorny issue.
On the one hand I begin with the responsibility I have to all my clients to maintain complete confidentiality in respect of my dealings with them. At the same time, I am accountable to the courts and the administration of our legal system. There has been an increasing call in recent years for transparency in the way family law and the courts work. There are those who say that secrecy perpetuates the view that justice cannot be seen to be done, so increasing mistrust of the system and those that work within it.
Do you want more openness?
The answer is likely to depend on what is personally at stake for you. Those that call for greater openness may do so from a stance of feeling confident that they have nothing to lose or hide. However, some fear details of their circumstances becoming known because of what it might reveal or if it might be misused or manipulated. One fundamental requirement in family law proceedings relating to financial provision being made is that each party must provide a full and open account to the other party of their financial circumstances. It is surprising how many people want to rail against this requirement, but it is the bedrock upon which legal advice can be given.
But does the public need to know?
First we have to know what can and cannot be publicised. Whilst the details of a divorce are rarely made public, the pronouncement of a decree of divorce or dissolution of a civil partnership takes place in open court. The general rule is that all personal aspects of the case, such as finance and those relating to children are determined in private with the Judge having the final say in opening the court to the public or press if he considers the public interest outweighs an individual wish for privacy. There are special rules for protecting children so that their identity and interests are protected. Unmarried couples face a bigger dilemma as their property disputes currently fall outside the “family“ system and can be more open to the public.
Do you choose privacy or publicity?
More people than ever before are choosing to work outside the court process in resolving their family breakdown issues. The cornerstone of the practice of collaborative family law is that an agreement is entered into between the parties saying they will not take their dispute to be decided by a Judge. If they break that agreement then they have to instruct new lawyers. Those seeking a collaborative way to resolve their situation, can avoid the public scrutiny of their personal lives and find a more private and respectful ending to their relationship away from the media spot light. However, one size does not fit all so the formal court process and the potential for publicity will still be preferred by some.
Returning to my initial thought of bikini versus one piece swimsuit, it occurs to me that a tankini may be the answer. This enables flexibility and by having all three tools available, namely Mediation, Collaboration and Court process I can offer all my clients a choice of swimwear!
Author: Dawn Harrison
Published: 22 August 2008