Family law litigation breeds uncertainty of outcomes

Family law litigation breeds uncertainty of outcomes

Andrews & Emery

Introduction

1. Once again, the completely over-taxed “public resources” of the Court are being stretched and utterly burdened further in relation to a matter that has already occupied a significant amount of the Court’s time.^[1]
2. To speak generally, most unfortunately, family law litigation, with its immense discretionary range in judicial determination, at both first instance and on appeal, seems especially adept in allowing if not inadvertently encouraging regular recourse to Courts to resolve contests between parties who, often for ignoble and/or other (regularly, quite petty) reasons, are simply unwilling to settle matters. It is a very rare case indeed that involves any matter of legal or other principle. More often than not, it is all about (or simply about) what this or that parent “wants”. “Personal want (or preference)” is not a regularly or usually recognised (let alone enforceable) category of legal right; it is more usually associated with street protests.
3. Indeed, family law litigation, precisely because of its basal discretionary nature and therefore (to speak colloquially) the regular approach of practitioners (and others) of “why not give this or that argument a “run” either at first instance or on appeal because one never knows if someone else might reach a different result”,^[2] is the complete and very regular manifestation of what Gleeson CJ (in a different context) warned when he said (emphasis added):^[3]
   In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance…
4. A particular consequence of the utter unpredictability of result in family law litigation – either at first instance or otherwise – is the complete inability of practitioners to be able to advise clients with any semblance of certainty what even the so-called “range” of a result might be. In such circumstances, it is therefore perfectly natural and understandable that practitioners will regularly run an argument, or an appeal, to see if (in fishing terms) they might “jag” a better result for their client.
5. And in the current matter, it may be that Gleeson CJ’s comment regarding the exhaustion of resources of the parties is happening here with the Father now self-represented while the Mother, who has a significant medical issue, either has the financial resources or her highly experienced lawyers are acting pursuant to some [properly] private arrangement.