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E15: What is the Judge thinking?

On the Show Today You’ll Learn

In this very special episode, Ben and Heather are joined by former Family Court judge, The Honourable Rodney K Burr, to give our listeners a unique insight into what the person wielding the gavel is really thinking.

Rodney Burr brings to the show the knowledge and experience earned through an long and illustrious legal career.  He is a former Justice of the Family Court of Australia, a former Chair of the Family Law Section of the Law Council, recipient of the United Nations Award for Services to the Year of the Family and a Member of the Order of Australia for services to Family Law and Children’s Rights.

Ben and Heather chat to Rodney about the good and bad sides to being a Judge and then drill down into more specific topics, including:

  • What to expect in Court.
  • What information is important to the Judge.
  • The importance of discretion in making judgements.
  • The perception of Court or Judge bias.
  • How decisions are made.
  • Tips for self-representation.

Links & Resources Mentioned in This Episode

Rod Burr Mediation, Conciliation & Dispute Resolution– find out more about our guest

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Full Episode Transcript

Welcome to Episode 15 of The Family Matters Show

Benjamin Bryant: Welcome to episode 15 of The Family Matters Show. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers and I’m here with my partner in crime, Heather McKinnon. Hi, Heather. How are you?

Heather McKinnon: Really well. And I’m really excited about today’s show.

Benjamin Bryant: I’m pretty excited too and I think our listeners will be as well. Because today we get the rare opportunity to chat with a former family court judge. So if you’ve ever wondered what a judge might be thinking. Today’s podcast is for you.

Benjamin Bryant: And now I’m very privileged to welcome the Honourable Rodney K Burr to our Family Matters Show. Rod is a former justice of the Family Court of Australia, a former chair of the family law section of the Law Council of Australia, recipient of the United Nations Award for Services to the Year of the Family, and a Member of the Order of Australia for Services to family law and children’s rights. Having retired from the bench, Rod now specialises in mediation, conciliation and dispute resolution and is speaking to us today from his home in Adelaide.

Rodney Burr: My pleasure, Ben.

Benjamin Bryant: Well, we’ve done a lot of ground to cover, so let’s get started.

What was the best thing about being a judge?

Benjamin Bryant:  What was the best thing about your job as a judge?

Rodney Burr: At times it was very difficult to think of positives when you were incredibly overloaded with work and the stress of decision making. But I think probably the understanding that it really constituted a recognition by your peers and by government that you were up for the job.

Rodney Burr:  The issue of status never worried me. I mean, I’ve certainly known Heather forever and she’d probably confirm that about me. Mind you, it wasn’t too difficult to get into a nice white Commonwealth car to be driven around and things like that. But seriously, the best thing about the job was: Okay, well, maybe those whom I respect in the profession, share that respect of me and believe that it’s appropriate to trust me with the very difficult and important task of intervening in people’s lives. I think that was the best thing.

Benjamin Bryant: And Rod, I think the answer to this one might be your workload, but what was the worst thing about your job as a judge?

Rodney Burr: Certainly workload was a large component. When people say to me, “What don’t you miss?”, the instant answer is the judgement writing. It was like doing an exam paper every fortnight of your life, basically, and an exam paper that you knew that not only the examiner was going to pore over.   Everybody had an opinion about your opinion. So that was difficult. It meant that you really tried to step up to the mark and made sure that your judgments were as good as they could possibly be.

Rodney Burr: I think the other worst thing about the job is what a number of us describe as the stress of decision making. This is a little like playing God on Earth for a while during the period of your appointment. You have a very comprehensive understanding of the impact you’re going to have on people’s lives. And so that brings with it a level of stress. You really don’t want to mess up.

Rodney Burr: And the other worst thing about the job was the significantly less a personal life that you had during that time. Sometimes your family had to be extremely understanding when you were devoting most nights after you had dinner with them and a lot of your weekends and certainly all of your leave to writing judgments to make sure that you just didn’t fall behind. Because I think one of the other important aspects of your role as a judge is to make sure people don’t have to wait too long for your decision. There’s a three-month rule where you’re supposed to get your judgments out within three months. And in my 14 years at the bench, I never missed that timeline because I understand how important it was to people. So that was mainly it, I think.

What matters need a judge’s decision?

Benjamin Bryant: Rod in your experience, what were the types of matters that ultimately needed decision by you? Was it because it as a complex subject matter or because maybe complex personalities or relationships?

Rodney Burr: A combination of all of the above, I think. I think the statistics have remained relatively solid in that only about 5% of all matters require a judicial determination, which of itself suggests that the judges are only dealing with the most complex of matters: matters that have not been able to be resolved by the lawyers and by other dispute resolution processes. But in a difficult property matter, of course, there could be significant complexity. I’m not sure that people understand that some of the largest commercial causes in Australia are run in the family court. If the captains of industry have marriage breakdowns then they’ve normally got some fairly complex structures to work through.

Rodney Burr: But probably those involving children were those that impacted you, probably more as a judge than others. In a sense, it didn’t matter too much if you were off the mark a little bit in a property matter. But certainly it would if you’re off the mark in a children’s matter. And, of course, the complexities in the relationships of the children’s parents and other people with whom they have relationships and new relationships that parties moved into, all made it a very much more difficult environment for the children and of course, therefore, for the judge in order to try and get that result right. I don’t think any of us believed that we were absolutely nailing it every time that we were 100 percent correct. I think as a judge, the best you could hope to do is the best you could do in the circumstances and on the material that was available to you.

Rodney Burr: We, of course, regularly didn’t get a lot of the important insight that impacted upon these children’s lives because people simply didn’t tell you about them. There might be some very good reasons why the parents didn’t want to disclose some information to the court. And you’d then hope that if there was an independent children’s lawyer available to you, that they would put all that material before you.

Rodney Burr: I think you both might know that for about eight years of my judicial life, I was the National Magellan judge and coordinating Magellan judges in the other states and territories. But it did mean that I sat on a lot of those cases. And you will know, I’m not sure that your listeners will of course, that Magellan was a dedicated program designed to deal with all matters in which there were allegations of sexual abuse of children or serious physical abuse of children. So you needed to treat those very urgently and promptly and try and produce a result that was certainly going to preserve the children’s needs and safety. But equally, the interests and needs of the parties themselves.

Heather McKinnon: And Rod I think, in our roles as Independent Children’s Lawyers what Ben and I often discuss in those cases is that your job as a judicial officer is often making decisions about which parent has more time when in some of those cases, you’d wonder whether the children should be with either parent. And those cases become fraught with complexity, because in Australia we just have that constant problem of, what is good enough parenting when a system really isn’t geared to deal with really drilling down into what capacity do either of these parents have, in some of those more complex cases, to really look after the needs of little ones?

Rodney Burr: I think one of the great impediments and frustrations that I felt in that role, and it would be with many judges as well, is unfortunately Australia is a federation. So that means that regularly the state authorities and departments that had different names all over the country, you know, family relationships or community welfare or whatever we like to call it, they regularly had significant material on their files about the families that you were dealing with. But as a judge in the federal arena, you had no power to order any state authority or body to do anything, frankly. You could invite them to participate. But if they chose not to, you could do nothing about it.

Rodney Burr: One of the great tasks that was set, I think, for all of Magellan judges was to establish good relationships with those state departments and authorities so that they understood it was important they tell us what they had and certainly I had that cooperation in South Australia. They were outstanding. The department, under its various names during my time and the child protection services of both the Women’s and Children’s Hospital and Flinders Hospital understood how important it was that I got as much information as it was possible to give me. Despite this federal/state divide, which is more than an annoyance, it’s a serious obstruction in so many areas. We’d be better off dismantling it. But you can probably guess how much of a chance we’ve got of that happening.

What should be expected on the first day in Family Court?

Benjamin Bryant: And Rod in preparation for court. Heather and I spend a lot of our time managing people’s expectations of what going to court actually looks like in real life and what you might expect on the first court event. In your view, what happens, for example, on at the first court event? What do you want to know? What are we there for?

Rodney Burr: Well to inform the court is your most important role. You need to be properly prepared. You might have one or two matters, say in a list, but the judge has got a heck of a lot more than one or two. And it’s important that you prepare very thoroughly and really stick to your best points and the most important issues. There’s no point just throwing and hurling at the judge a great mountain of material and say, “You go for it Judge, you sort it out.” You really need to be very well-prepared.

Rodney Burr: You made reference, I think, earlier, if not, you will, to the amount of work that a judge has and the number of dockets they need to stay on top of. So the judges need help and they are entitled to expect help from the lawyers, not just their support staff. It’s not there for the judge to do it all themselves. If there is legal representation, then the parties are also entitled to believe that their lawyers will be on top of the matter and be able to provide an appropriate, pithy summary and not a rambling discourse that is unhelpful.

How do you tell the many cases you work on apart?

Benjamin Bryant: And you mentioned Rod, that you have a heck of a lot more than one or two cases at court at any one time. How do you tell the cases apart? You know, we have might have a couple of hundred matters. And of course, on any docket you could have 4 or 500 matters. How do you tell the other cases apart? What preparation do you do?

Rodney Burr: Well, I guess fortunately, you don’t have all of your dockets happening on the one day, so you would undertake preparation for each day’s event. Certainly Monday was sometimes easy to get through because you had the whole of the weekend to get yourself ready. And of course, you also had the surprise pop-up. There was always an urgent matter here and there, which wasn’t yet in your docket sufficient that you could undertake a good deal of preparation. But you knew what was coming. You also are pretty well supported by some amazing people who work in the courts. Certainly the judges in the family court had the advantage of a legal associate and the administrative support staff to my associate and my legal associates during my time in the job were incredibly important in terms of providing summaries for me of each matter before it came on for hearing.

Rodney Burr: In your duty lists, they were more difficult, of course, if you had 20 to 30 matters in a day, which is what the Federal Circuit Court has now, but which, of course, the Family Court did in my time as well. I was a judge before there was even another court operating in the jurisdiction. So you did need the staff to help you out a good deal and of course, good representation. So the lawyers could make your task a lot easier. Some of the matters were so horrible in a sense that you could never possibly forget the detail about them. So, yes, preparation was important for the judge. And the support that you had from the staff was also critical.

As a judge, do you read all the documents our clients submit?

Benjamin Bryant: And with your role, obviously there’s a lot of reading to do because especially on an interim basis, matters are dealt with, as we say, on the documents. And when we are preparing affidavits, which is a pretty big time for our clients, because that’s when they commit their story, I guess, to paper. And the question we often get asked is, will the judge read this? Will they understand everything? Do you read it all? And if so, when?

Rodney Burr: Duty lists are different from trials, of course. I know that the court, since my retirement, has introduced a number of rules about the length of these affidavits. I certainly understand why. If every duty matter that you did had a 30-page affidavit plus another 30 pages of annexures, the honest answer would be no, you didn’t read it. And so you really relied upon the lawyer to give me your best summary possible.

Rodney Burr: Trial was different, in a sense they were easier because there was a requirement that the lawyers file a case outline document, that was supposed to be 48 working hours prior to the trial. Well, ya right… if you were lucky. Regularly you’d start your trial on a Monday and the case outline document would be handed up then. The case outline document, though, identified the documents that, of course, the parties, through their lawyers, were intending to rely upon. And those were the ones that were read. In fact, it was important that you did not read everything that was on the court file, as not all of it would be adduced into evidence before you. And if you took account of extraneous matters in the preparation of your judgment, you could well get rolled on an appeal. So it was important that the materials that you were being asked to read were identified clearly and then you could get into those.

Heather McKinnon: Rod, I think it’s really important that you give that good feedback that solicitors are part of the team, if you like.  And that our role isn’t to just let the client go off on a rant, but to really help the judicial officer by summarising very well the core things that are needed to make those decisions. It’s always that push back, as you remember back in the days when you were a lawyer and not a judge, that management of client expectations and then accepting that our role is to help the client, but it’s also to help the judge. I think you’ve really given our listeners a very good understanding of why our role is so important to help the judges that are deciding the matter.

Rodney Burr: Absolutely. And I think the lawyer’s role is at times difficult to explain, in that you certainly are there for your client, but being there for your client doesn’t mean just piling on the judge everything the client wants to say or believes is important. You use lawyers because they have the knowledge and experience that will best prepare a client’s coast to put before a judge and know there are a large number of areas where it’s not helpful for the judge to know particular material. You need to be pithy. You need to be on point. And that’s very much the difference between the poor people who have to struggle to represent themselves as against having lawyers. In my post judicial life that you referred to as a mediator. I don’t do mediations unless there are lawyers engaged on both sides. And that’s very much because it’s difficult for the parties to put aside the emotion of it all and just concentrate on the stuff that really matters in getting a determination.

Rodney Burr: So, look, the world would be a far more difficult place, particularly in this jurisdiction, without lawyers. The lawyers in this jurisdiction are very passionate about getting a result which is not going to cost a client a fortune but is a result that the clients can live with and get on with their lives. By the way, I use that expression “live with” quite deliberately. I don’t think anybody should be of the view that any outcome in this jurisdiction is going to mean you’re going to be deliriously happy at the end of it. I think the best way to describe it is that you need to share the pain.

As a family law judge you have a lot of discretion.  Is this a liberty or a frustration?

Benjamin Bryant: And extending off that unlike many of the other jurisdictions, family law, of course, is filled with grey area. It’s all about discretion. In your role as a judge did you view that discretion as a liberty to be taken by you or a bit of a frustration

Rodney Burr: I don’t know that I’d use the word liberty, but I’d prefer that as against frustration. I think what it did mean that you had tools available to you to try and craft a result that was the best possible outcome you could find for these particular parties. As you would know, in Europe there’s a lot more of the rigid regimes that come with fixed property regimes and things like that. We have a discretionary system here, which I think is close to the best that you can get in the world. I know a lot of people have been through the process, would never accept that it’s in any sense a best, but it is in the sense that every person on this planet is different. I defy anybody to tell me that they’ve met somebody who is an exact replica of somebody else on the planet. So as many different personalities and people as there are on the planet, there are almost as many possible outcomes. And so it’s important, I think, to give the judge the kit bag of tools to craft an outcome that’s going to suit this particular couple or this particular relationship because they are different and you need to be aware of the very different possibilities that are available to you as a judge.

Rodney Burr: That doesn’t mean it’s a free for all. As you would know, there are quite specific legislative guidelines, guidelines by other decided cases, by authorities as to how you should, in a general sense, approach these things. But within that generality, you are able to apply some specificity and actually, at least pick out the points that in this particular case, you think are the most outstanding and the most relevant and would hopefully lead you to the right result. So I’m glad we operate under a discretionary jurisdiction because I think otherwise a quite rigid approach to these things would lead to far more injustices than may well occur occasionally with the discretionary system. So I like the fact that I was able to use my experience, my knowledge and the evidence before me to generate an outcome that I thought was hopefully the best we could do.

Do you believe that judges may make decisions based on their own biases?

Benjamin Bryant: And I think it’s fair to say that there’s a conception out there that judges have particular biases. We know they’re human. For example, a judge will always favour the male. A judge will discount the effect of family violence. What are your views on those conceptions? Are they misguided?

Rodney Burr: Well, I don’t think that any judge or lawyer will ever be able to put those conceptions away. They’ll never be buried. There are a large number of commentators in this particular jurisdiction. A lot of people either have the level of expertise in some elements of the jurisdiction or claim to have an expertise that they don’t. And that the sheer passion and emotion of the jurisdiction generates a lot of rumour and innuendo about it, I think. So we will never bury the perception that we have particular biases or there’s a particular approach that’s adopted in the court.

Rodney Burr: But aside from a psychiatrist sitting me down and establishing that I have some deep-seated biases that I’ve not yet been able to identify, I would say we don’t. One thing you often hear as a judge and probably in the profession generally, is that these privileged judges are completely removed from real society. Well, I would say that nobody on the planet is more exposed to all of the best and worst of life than a judge. We don’t actually have to have gone out there and assaulted somebody to know how vile it is. As to whether or not any of us have biases, I guess we probably do. But I don’t think there would be biases of such a nature that they would prejudice the result. I’m not going to give, for example, a Crows footballer a better outcome than a Port Adelaide footballer, just because I barrack for their team.

Heather McKinnon: I wouldn’t believe that.  But it is also the case that the general public isn’t aware of the level of ongoing continuing education that judicial officers have. And I know that internationally you were always presenting papers or being involved in international training with judicial officers from around the world so that there’s that constant testing of your own views because you’re exposed to the way your peers right around the world deliver judgments in similar circumstances.

Rodney Burr: Oh, I think you’re right. I mean, one of the great skills that we all possess as human beings is being wise after the event. So we may well have had these 40 years ago. Not in your case, of course, because you’re all so young… that are conditioned and changed over time. Certainly historically, society didn’t get it right on so many levels. But I would say judges were bludgeoned with education for their entire judicial lives. The court is very good at pointing you in the right direction, sending you to conferences, make sure that you’re up-skilling on a regular basis. And of course, a lot of us take it on voluntarily. I mean, Heather, certainly you would know that I, with a good friend, Stuart Fowler, inaugurated the World Congress in family law and children’s rights. And that was very much about assisting children in appalling circumstances in some of the countries of the world. But the great benefit you drew from it was that for all of these, in one case in San Francisco, fourteen hundred delegates we had from about 83 different professions. You spend most of your life learning. I’m still learning. I mean, it’s eight years since I was a judge. And in the whole of that time, I’ve been doing mediations. And every day is different. Every day I learn something new. Fortunately, in most instances it’s not something that’s critically news, so that I should have known it a while ago. But there’s always an adjustment that you make if you grow and develop as a human being. Then it’s not much different than growing and developing as a judge. It’s just that I have done a different job than most people do. But all of us on the path to greater enlightenment until the day that God pulls the plug.

How do you decide when it’s one person’s word against another?

Benjamin Bryant: And in your role as a judge, Rod, especially with family law and with parenting matters, there’s a lot of he-said she-said. When the outcome impacts the lives of children, how do you flip that coin?

Rodney Burr: Again, I would hate to think that we get around to flipping a coin. But I do understand what the question means. I would like some very clever scientist to invent a totally harmless truth serum, that would be wonderful. But we do have the truth serum that’s available to us in the trial process, and it’s called cross-examination. A very skilful cross-examination regularly assists the judge in getting to a result that is more likely right than wrong. A thorough testing of the evidence, without it being nasty… I mean, don’t watch too many American television shows because they do not represent what happens in our courts in Australia and particularly in the family courts. But a skilful cross-examination is still the best way to expose the truth or as close to the truth as you’re ever going to get. The rest of it is a fall back on experience.

Rodney Burr:  Look, here’s some insight for you. I always thought that there were two types of judgments that I wrote. One was I’d walk out of court, knowing exactly what I was going to do. And so you’d write the judgement and that was the result. In a way, it was kind of working backwards. You knew the result and then you’d look through all the evidence and the law and make sure that you had it right. The other type of judgment was when you walked out of court and you had no idea what the end result might be until you’d done the work. So you would then read the affidavits, read the transcripts of material, especially some of the cross examinations. You’d check your own notes because every judge notes down the evidence in their own bench book as they go. You would review all the exhibits, you’d review the expert reports, review the evidence they’d given. And once you’ve done all that, then you’d make your findings of fact and you then applied the law. The result would usually pop out. And there it was and you knew what it was. But sometimes you had to actually do all of that legwork to get to the result where others, the easier ones where you’d walk out of court knowing exactly what you were going to do. And it was just important you then gave appropriate, full and adequate reasons. So the parties understood and the lawyers understood why you got there.

What are the common traps people fall into when presenting a case at court?

Benjamin Bryant: Excellent. And just finally, Rod, I wanted to ask you a couple of questions about parties appearing in court. Who better to ask than a former judge? What are some of the common traps that parties fall into when presenting their case before a judge?

Rodney Burr: Are you talking about litigants in person.

Benjamin Bryant: Yes. Let’s do it that way for our listeners. Yes.

Rodney Burr: So people who represent themselves have a far more difficult task ahead of them than if they do have a lawyer. And we all understand why they don’t necessarily have a lawyer. They might have run out of money, they just can’t afford it anyway, they don’t qualify for legal aid or it’s their personal choice. They think they can do it themselves. I think the greatest impediment that people would have to doing it themselves is, well, one’s obvious, which is there’s no way they could ever have the level of understanding or expertise that a lawyer representing them could have. But the most difficult impediment, I think, is the emotion. It’s very difficult to set aside the emotion when you’re arguing your case and passion doesn’t necessarily assist you in getting your message across. It can get lost in the passion and the emotion and the outrage and often the anger that we see. It must be very difficult. And I’ve seen it in a courtroom of a person representing themselves sitting down, listening to the evidence of the other party and just being offended or horrified by what they’re hearing and not being able to restrain themselves in the appropriate fashion. A judge just needs clear air at times to try and get to the right result. And it really can be compounded by a high level of emotion.

Rodney Burr: So having lawyers is always a pretty good start for the judge, but it doesn’t mean that people representing themselves are not going to get an appropriate result. It’s just a lot harder for the judge because there is…I don’t want to demean it by saying it’s a lot of chaff…but there’s a whole lot of stuff that is not going to help the judge decide, but the people themselves believe is incredibly important that the judge hear it.

Rodney Burr: Having said that, I think that the hallmarks of a good decision in the Family Court or the Federal Circuit Court are three-fold. I know there are probably a whole lot more, but I think that could be encapsulated in these three areas. One is, as a judge, people should leave your courtroom feeling like they’ve been heard. They’ve been listened to; they’ve been able to tell this story. So within the confines of it becoming entirely irrelevant and running off in all the wrong directions, people do need and are entitled to expect that a judge is going to hear them, is going to listen to them. It’s pretty important.

Rodney Burr: The second thing is. People should leave your courtroom feeling like they’ve been respected. Unfortunately, as a judge, you will occasionally get some quite disrespectful behaviour levelled at you and quite at times abusive behaviour. But you should not, as a judge, respond in kind. You need to help those people understand that you do respect their position. You do respect how hard it is for them at this time and how important it is to them to get that story out. So absolutely, they need to leave the courtroom feeling like they’ve been heard but also, they’ve been respected and that and they’ve received respectful treatment. I don’t think it’s the judge’s role to be arrogant and to put people down and to make them feel small. And I hope I never did that.

Rodney Burr: But the third element is, and this gets back to what I said a little bit earlier, people should leave your courtroom, when you deliver your judgment, just a little bit unhappy. I think if you see one of them doing Toyota High-kicks down the street afterwards then you know you’ve probably messed up. This is back to sharing the pain. I think if somebody gets a simply outstanding result, it might not be the right decision.

Rodney Burr: But there are, of course, exceptions to that. Some cases just are simply going to have a winner and simply going to have a loser. And I think among the most difficult that judges in the Family Court had to deal with were international relocation cases, where one parent wanted to move overseas with the children. Now, if you made the decision that they could go with the children, clearly the parent left behind was never going to have the same relationship with their children again. But if you force the other party to remain behind, then it could well impact their level of parenting, not necessarily consciously, but the thing they so desperately wanted to do, for example, resume their life with their support family living overseas. Because we, prior to Covid, were such a mobile society, we are a very multicultural world. We don’t have Austrians living in Austria. We don’t have Australians living in Australia. We don’t have Italians living in Italy. They are all over the planet. That if a relationship breaks down and you have no support structure in place in your adopted country, one of the things you would want to do is to get home, get home to your mum and dad, get home to your brothers and sisters, your uncles and aunts, whatever else. So making those decisions were just terrible. They were they were the stuff of sleepless nights for judges because there was a clear winner and a clear loser.

Rodney Burr: But in so many other cases, there isn’t. And they should just cop a bit of it each I’m afraid to get it done and get on with their lives because it’s all about dealing with your future, not your past. If you can give them an opportunity to craft a new life and at least know what it looks like. The decision’s been made. You know what you need to do to move forward. I think that’s a pretty important role that a judge plays.

What are your tips to getting just and equitable outcomes in court?

Benjamin Bryant: And finally, Rod, I just want to ask me what tips you can offer for parties to best pursue a just and equitable property settlement or to seek parenting orders that are in the best interests of the children.

Rodney Burr: Well, given my earlier statements, I would say get a lawyer. That’s a pretty good start. But even if you can’t, you need to make sure that all of the materials that you need to rely upon and all of the materials that you expect the others are going to rely upon have been exchanged. A regular complaint in the jurisdiction is non-disclosure of relevant materials. So you need to make sure that you secured as much information as you can before you go to trial. But preparation, all important.

Rodney Burr: Property matters. You would all know the steps. Your clients would know the steps because you’ve told them. Identifying what the assets are. Making sure you understand what everything is that might and ought to be included. Sometimes it’s difficult if there are complex corporate or trust structures to get that done and then seek all the necessary disclosure about that. Once you know or comfortable that you believe you know what those assets are, you have to apply value to them. So make sure you’ve either agreed the values in advance between yourselves, or you’ve secured relevant valuations.

Rodney Burr:  The next step is you’ve got to look into the past. What were the contributions of each of the parties to the relationship? What did they start with? What did they contribute during the relationship? What have they contributed since separation? And of course, those contributions are both of the financial nature and the non-financial nature: parenting, all the stuff around the house, the garden, you name it. Once you stop looking into the past is supposed to come up with a magic percentage as to how to divide that asset pool you’ve identified. But then you got to go the next step, which is to try and project yourself into the future. Do the crystal ball stuff, that weird Section 75-2, and there’s an equivalent section 90 odd something for de facto couples. And in that, you’ve got to look at what are the comparative financial positions of the parties? What are the comparative income earning capacities? Whether there are children still being cared for by one more than the other? Are there health issues? All of those factors come into play under that.

Rodney Burr: So having looked into the past, looked at the future, there’s supposed to be a result that pops out. The better prepared you are, then the better result that you are likely to get. You should not leave all the work to the judge. We don’t have the capacity to go out there and explore ourselves and hunt down all of the relevant evidence. That’s the job of the lawyers or the parties themselves if they’re not represented and the judge can only work on the material that’s presented to them during the course.

Rodney Burr: And I think the other thing is to try and know your opponent’s case as good as you can. I know you won’t as intimately as they do. But there is usually enough material on the file for you to be able to predict where your problems might lie. And I think it’s important you try and prepare yourself as to how you might deal with those problems when they emerge. So they are the rough guidelines.

Goodbye from The Family Matters Show

Benjamin Bryant: Wow, what a show. Ron, thank you so much for being with us today and sharing your experience and your wisdom. It’s been an incredible insight into a judge’s perspective on what goes on in the Family Court.

Rodney Burr: Well, my pleasure I’d have to say. I hope I’ve done the job justice because it is not that easy when you understand that you are playing God on Earth for a while. And it’s incredibly important that you do get this right. The impact your decisions have on people’s lives are incredibly significant. Every one of us takes it very seriously. Every one of us gives it our very, very best shot. We know how important what we do is and, in a sense, what a privilege we’ve been given to try and provide those sorts of services and outcomes. So, look, thank you for having me. I think I’ve enjoyed the experience. I’m not sure that enjoy is the right word, but it’s been interesting for me to both travel down memory lane a bit, but also perhaps throw up some bits of information and insight that you, your listeners might find sometimes harmful.

Benjamin Bryant: Well, for what it’s worth Rod, I think you nailed it. And I know it’s a huge resource that we’re going to be using, and we’ll be referring many clients to this podcast in the future. And I think I may even refer back to it from time to time. Heather, what did you think?

Heather McKinnon: Oh Rod, look, it’s been such a privilege to have you in my life as a mentor for decades and your service to the Australian community and the international family law community’s been recognised by the U.N. and your fellow Australians. But thanks for giving us, in our any little part of regional Australia, your time and continuing to be of service to your fellow Australians. It’s fantastic that you took part and enjoy the rest of your time mediating.

Rodney Burr: Thank you. You’re very flattering, but I’ll take that on board. Not everything people say about me is necessarily flattering, so I’ll just take that with me, if that’s OK.

Benjamin Bryant: Well said, Heather.

Benjamin Bryant: Remember that a full transcript of today’s show and links to any resources mentioned on the show will be available in the show notes on our website. Next month, it’s back to just you and me, Heather. Which might feel like a bit of a comedown. But the topic we are covering is really important for a lot of people out there. We will be discussing divorce and the family business. Divorce is complicated and emotional for just about everyone. But when you add to the mix the family business, things can get really tricky. You’re no longer simply dividing up the assets. You’re making decisions that could affect your future career.

Benjamin Bryant: If you have questions related to divorce or separation and family business, please let us know by e-mailing us in confidence at familymatters.com.au or messaging us on Facebook. Goodbye for now. And we look forward to being with you again next month.



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