Eakin McCaffery Cox partner champions a ‘back to basics’ approach in practising law

What made you choose a career in law, and what's your favourite part of the job?

Law chose me after I decided not to enter medicine. I did a combined law degree at Sydney University in the 1980’s, and had lots of memorable teachers in the psychology department and the law faculty.

I am passionate about family law because the case law, legislation and rules are always evolving, and most other areas of the law intersect with family law at one time or another. I am also passionate about alternative dispute resolution and enjoy my work as a mediator and collaborative lawyer.

I am glad to have variety in my professional life. I am grateful to all of my colleagues over the years, including my current colleagues, that have enabled me to pursue a range of interests in the practice of law.

What is the most memorable case you've taken on or been involved in?

The tough parenting cases are more significant than the hard-fought or intellectually-stimulating financial cases. The welfare of children is more important than a contest over property. I’ve had my fair share of the really hard parenting cases, both as an independent children’s lawyer and as the legal representative for a parent or other relative of the child.

I was involved in the successful appeal to the Family Court in Vibbard & Garcia [2012] FamCAFC11. It was a decision of critical importance to the practice and procedure of the Federal Circuit Court.

My client wanted to take her child on an overseas holiday to celebrate a milestone birthday. The child’s father withheld his consent. My client filed an initiating application. I requested short service and an urgent return date. The registrar refused, allocating as the first return date, a date after the proposed overseas holiday.

At that time, I was on the family law committee of the NSW Law Society. The committee was aware that applications for urgency/short service were being allowed or refused by the registrar of the Federal Circuit Court on the premise that the registrar was acting administratively, rather than exercising a discretion in relation to a delegated judicial power. The administrative law rationale did not sound right to me.

There were two competing lines of authority, the “administrative approach” (my shorthand terminology) favoured by one of the Sydney-based judges and the “judicial approach” favoured by one of the Parramatta-based judges. A full bench of the Family Court, led by Chief Justice Bryant, was quickly convened (in less than seven days). The impression from the registry when I lodged the appeal book was that the Full Court was waiting for this appeal to arrive.

The appeal was allowed (with no appearance by the respondent). The application for short service was remitted to the Federal Circuit Court, where a judge promptly made orders in chambers to list the matter in his duty list a week later. For the client, she and her 10-year-old child ended up having the holiday of a lifetime after a consent order was negotiated at court.

At the macro level, the controversial problem of the Federal Circuit Court batting-away more urgent applications than it could handle based on an administrative law argument was resolved.

What is going on at the firm? Are there any new programs and initiatives that you’re particularly interested in?

Eakin McCaffery Cox is a growing medium-size Sydney CBD firm. Historically, it is known as a commercial law firm with strong litigation and property practices. What has bound Eakin McCaffery Cox over the years, and what remains a constant for the firm, is a stable and loyal client base. There’s also an excellent collegiate relationship between the firm’s personnel, at all levels. 

Those things, and the depth of experience of the senior lawyers, are the reasons that I joined the firm on 1 July this year. Eakin can now be regarded as a multi-service firm because it has accredited specialists in six areas of the law – employment law, government administrative law, property law, wills and estates, family law and dispute resolution – alongside an expanding practice in building and construction law and its core practice areas.

I am one of six senior practitioners to join the firm recently. New initiatives will emerge over the next 12 to 18 months as the professional bonds in the senior leadership team grow and integrate. I will also be maintaining a collaborative alliance with my former colleagues at Gadens Sydney to continue looking after their clients’ family law needs.

What tech-related initiatives adopted by the firm, if any, are you most excited about?

The firm employs up-to-date systems, which are supported by an internal IT team. I am told that the firm’s technology philosophy adopts the classical adage “Festina lente” (“make haste slowly”) – I suspect that statement reveals that there is an ancient history expert within the firm or perhaps a student of Latin. What excites me about the tech-related initiatives at Eakins is that they are robust and actually work, and they allow my team to function effectively. 

What’s the biggest lesson you learned in the past year and what advice can you give fellow lawyers about it?

In my experience, the legal profession, and for that matter society as a whole, has learnt to be respectful, kind and tolerant to each other during the COVID-19 pandemic. With or without the virus, I remain of the view that one of the biggest challenges for lawyers in private practice is that they refrain from allowing their clients to adopt silly positions or arguments during litigation or during negotiations away from court.

Moreover, ideally, young lawyers will have good mentors within their workplaces, and also within their wider networks. Irrespective of that ideal, young lawyers, and older lawyers alike can perform better and enjoy their work by listening intently to others and keeping an open mind to the views and perceptions of the other person. It’s not enough to really listen to your clients (and question their perspectives and potentially challenge them) – you also have to listen to what your colleagues say and ask them the “what, when and how” questions to obtain the best understanding of what is going on. Questions have to be asked in a respectful, collegiate way with a view to everyone improving their understanding of the conflict or the situation.

What lessons have you learned about your practice over the past year?

When I lectured in family law many years ago, I likened family lawyers to foot soldiers. It is the decent legal practitioners (solicitors and barristers) who make the family law system work. This is especially the case in the Australian family law system where most of the parenting provisions are based upon the “best interests of the child” principle (what Robert Mnookin, an American academic in 1976 described as “a term of indeterminate reference”), and when property settlements are based upon a discretionary regime.

Clients, the community, courts and government depend upon family lawyers to guide their clients towards reaching sensible outcomes. Having judges decide every dispute, or every issue in dispute in a case, is both unrealistic and unaffordable for the Australian community. Lost productivity from intractable disputes is enormous and wasteful. The hurt and distress to the children and adults in families that are involved and otherwise affected by long-running family law disputes can last for years. Contested court hearings and other negative encounters with the family law system, can lead or contribute to the development of trauma in individuals.

Family lawyers today work in a more integrated way with counsellors, mediators and other social science practitioners to provide “trauma-informed” service delivery, than at any other time in the history of the Family Law Act, 1975. I am proud of the cooperative professional relationships that many lawyers have forged with other family professionals within the family law system, particularly over the last 15 years.

What should the profession and law firms focus more on?

Today’s lawyer needs to be a problem solver and trusted advisor to assist the resolution of issues that challenge a client’s business or family.

I’m also an advocate of a “back to basics” approach to the practice of law and the delivery of client-focussed legal services. Good practical legal training, ongoing skills development and following a sound ethical decision-making framework are as important today as they were 30, 50 or 100 years ago. Fashions and fads in the law come and go, but professional responsibilities and courtesies are timeless.

What are the challenges you expect in your practice and in the business of law in general, going forward? What challenges are particularly pressing in the country’s legal industry?

Unfortunately, the massive workloads of Federal Circuit Court judges have continued and court delays still remain a huge challenge for registries across Australia. Nonetheless, I am optimistic that the merger of the Family Court and the Federal Court commencing 1 September and the harmonisation of their court rules will bring about improvements and efficiencies in the family law jurisdiction over time.

Having worked at law firms that are small, medium and large in size, if there is a common challenge for lawyers across all practice areas, it is the challenge of delivering quality legal advice and legal services at a cost that is affordable, respected and valued by the client.

Many areas of law cannot be transformed into commodity services, and family law is one of them. Clients, across the many areas of law, appreciate comprehensive advice that gives meaning to the legal advice given – in other words, advice that incorporates legal advice and includes an understanding of the client’s needs and interests. This is the stuff of McCormack’s book What They Didn’t Teach Me at Yale Law School.

What are you looking forward to the most in the coming year?

Celebrating when the associate in my team, Katherine Evans, opens the mail from the Law Society and reads that she has passed her accredited specialisation in family law.