There is a lot to be said for sensible compromise

by | Jul 28, 2016 | Family Law

Two recent decisions throw the problems faced by people going to our Family Courts seeking justice into sharp relief.

In the first, a matter of Hall v. Hall, the High Court dealt with a matter where the decision on appeal was not delivered for 8 months, saying:

“It is an objective of the Family Law Act 1975 (Cth) reflected in the obligation it imposes on the Family Court that proceedings under the Act are “not protracted”. It is an objective of the Family Law Rules 2004 (Cth) that “each case is resolved in a just and timely manner”. For reasons that are not apparent from the record, the objective of timeliness was not met in this case.”

The Court went on to say that:

“That delay of nearly nine months in delivering judgment on an application for leave to appeal from the dismissal of an application for the discharge of an interlocutory order is unexplained. On any view, the delay is unacceptable.”

In the second case of Milne & Joyce, in the Full Court of the Family Court, an appellant asked to lead new evidence after a decision in his property trial was not delivered until 19 months after the close of evidence. He argued that the value of much of the relevant property had changed in the intervening period, making the decision unfair.

The Appeal Court noted:

“The proceedings started in 2008. The trial was completed in six tranches between February 2009 and September 2011. The last submission was filed in April 2012, but judgment was not delivered until 13 December 2013.”

The husband was refused leave to introduce new evidence in the appeal. The Court, following earlier authority, said that the onus had been on him to seek to bring the change to the Trial Judge’s attention before the Judgement was delivered.

The Court also noted, though, that:

“Furthermore, we were told that the valuations that have now been obtained by the wife would be disputed. Such a controversy would require the matter to be remitted to the court below. Given that the proceedings have been on foot for over eight years, the interests of justice clearly weigh heavily against any further delay.”

It is easy to blame the Judges for these delays but, in reality, the workload placed on the available Judges is overwhelming.

In my experience it is common for a number of matters to be listed on the same day, before the same Judge, in the hope that some will settle. If they do not, the parties and their lawyers have to come back another day.

As a doctor I once acted for pointed out, if that happened each time someone went to a hospital for surgery, there would be a revolt by the medical profession.

The underfunding of the Courts is a critical issue for our society. It impacts not only the parties to these cases but, more importantly, their children.
Having spent a decade working in the Guardianship, Queensland and New South Wales Civil and Administrative Tribunals, I have seen first hand the growing demand for prompt arbitration of disputes and the challenges of providing it.

As a lawyer, I believe that we must change our culture of reliance on external decision makers and embrace the role of encouraging people to make sensible compromises in their own interests.

We should also be prepared to agitate for the system to receive the funding it requires to operate for the benefit of the people it serves.

Disclaimer: Cheney Suthers Lawyers website does not provide legal advice. All information is of general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. Cheney Suthers Lawyers accepts no responsibility for the loss or damage caused to any person action on or refraining from actions as a result of any information contained on this website. Liability limited by a scheme approved under Professional Standards Legislation. All material on this Website is subject to Copyright.

Call Us