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Appeal Judge acknowledges outcome in Family Law disputes a matter of LUCK

It is extremely disappointing to read that the orders you receive in a Family Law dispute are purely a matter of LUCK.

It is extremely disappointing to read that the orders you receive in a Family Law dispute are purely a matter of LUCK.

In her recent judgement delivered in response to an appeal against orders made in the FMC, Boland J. make particular reference to a decision by Kirby J. (CDJ v VAJ HCA76 (1998) 197 CLR 172; (1998) FLC 92-828) at 230 - 231, quoting the following passage:
Discretionary and evaluative decisions

186. A number of general propositions may be stated:

1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is "plainly wrong" will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to "plainly wrong" is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. (Text highlighted in red by Oneadadc)
Justice Boland's judgement can be found at:

This comment raises a couple of very important issues.

The first is predictability. A parent, unfortunate enough to be involved in family breakdown, has a right to expect the Judges and Magistrates of Australia's Family Courts strive to offer "best practice" and consistent decisions in Family law Matters, because as was mentioned in the same passage, it is people's very lives that is being decided. To justify inconsistency in how the law is applied as normal borders on incompetence. At best it demonstrates poor communication and training of Judicial officers and within the court system.

The next issue is hypocrisy. The court claims to apply the Law and the principle of "Best interests of the Child". If the same evidence can lead to different decisions, then the court can hardly claim to apply the law and to seek to find the best interests of the children.

And the gravest accusation of all. It is the courts failure to offer consistent decisions which drives to failure of parents to come to workable agreement after separation. The "Shadow of the Law" is real. If parents had the expectation that particular circumstances and evidence would lead to a likely outcome in court, they would be much more likely to come to an agreement without resorting to court. At present, many believe it is worth the risk, like buying a lotto ticket.

PENDER & HAYWARD   (2007) FamCA 1526

For me - Shared Parenting is a Reality - Maybe it can be for you too!

Hopefully this is a one off

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Last edit: by Agog

Your future starts today
I can see our ex coming up with "important family events" every day or so…lol - isn't that how everyone else thinks of late night shopping?

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 


Naturally, any order is open to abuse.

The constant excuse of a Family Event prevented contact on that occasion would in the normal course of events lead to a contravention application.

And the likely outcome would be a change of orders removing the clause, with a an admonishment from the bench to "Organise family events when the child is supposed to be with you!"

For me - Shared Parenting is a Reality - Maybe it can be for you too!
LifeInsight said
What you have said is common sense. Then why would a Judge defy common sense and make such an order?
Unfortunately one of life's lessons is that the 'Law', 'Justice' and 'Common Sense' are different. If they were the same society would be Utopian.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
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