How Broad Is the Court’s Discretion?

In any matter coming before the Federal Circuit and Family Court of Australia (“FCFCOA”) a Judge has what has become known as an “unfettered discretion”.

What this means is that when deciding parenting matters, property matters or any other matters that require determination before the Court, a Judge is at liberty to make a decision in terms completely open to them.  Although the discretion may be “unfettered” a Judge is required to take into account factors required to be taken into account in the Family Law Act 1975 (“FLA”).

In parenting matters the Court is charged with the obligation to make Orders which are ultimately in the best interests of children and which promote their welfare.  The Court’s mandate is first and foremost to focus on the best interests of the child and to meet and to give effect to the Convention on the Rights of the Child.  Primarily, the Court’s obligation is to ensure that children’s best interests are met including by ensuring their safety.  This is the Court’s “paramount consideration”.  The Court is empowered to make decisions about who has “parental responsibility”, that is the right to make decisions about a child’s long term welfare which was previously called “guardianship”.  Parents are required to attend mediation before embarking on litigation about parenting matters other than in exceptional circumstances where there are considerations of urgency or family violence.

In addition to making decisions about “parental responsibility” the Court is also empowered to make Orders about what time a child spends with the parent with whom they do not live as well as other factors such as what time a child spends with the parent with whom they don’t live as well as other factors such as a child’s surname, education, medical treatment and the like.

The Act sets out a number of considerations the Court is required to take into account which include:

• What parenting arrangements would best promote the safety of children (including safety from family violence, abuse, neglect or other harm) of the child and each parent who has care of the child;
• Any views expressed by the child – with such views being given such weight as the Court deems appropriate taking into account the age and maturity of the child;
• The developmental, psychological, emotional and cultural needs of the child which would include lifestyle, culture and traditions;
• The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs having regard to the carer’s ability and willingness to seek support to assist them with care;
• The benefit to the child of being able to have a relationship with both parents and other significant people, where it is safe to do so;
• Anything else that the Court considers relevant to the child and the objectives of promoting the child’s best interest; and
• If the child is Aboriginal or a Torres Strait Islander the Court must consider their right to enjoy their culture and to have the opportunity to connect with and maintain their connection with the family, community, culture, country and language.

No single factor is given more weight than any other factor.  The Court must take all factors into account in deciding its overarching obligation to make Orders to fulfil the paramount obligation of making Orders that serve the best interests of the child.

Subject to the Court taking those factors into account and giving them sufficient weight the Judge is at liberty to make Orders to achieve the outcome that they desire and believes is in the best interests of children.

Similarly when deciding property cases the Court is required to firstly consider whether an adjustment of property is necessary and, if so, take well established steps before exercising its discretion.  The steps are:

1. Identifying and valuing the property pool – this would include houses, cars, business interests, investments, cryptocurrency, bullion and the like and deducting from the assets the liabilities such as mortgage loans, credit card and tax debts;
2. Assessing contributions financial and non-financial direct and indirect made during the relationship and post separation including in the capacity of homemaker and parent and any family violence if relevant; and
3. Making any adjustment for future needs after taking into account the age and state of health of each party, their employment, income and future earning capacity, their obligation for any dependents whether they be children of the marriage or otherwise, the need to provide housing for a child of the relationship/marriage, any domestic violence to the extent it is relevant etc.

Once all of the above matters are taken into account and given due weight and consideration the Judge is then at large to make Orders for the adjustment of property.  The Court can also take into account things such as whether a party has failed in their obligation to provide financial disclosure or cooperate with the Court process or being unreasonable throughout the process in reaching resolution of matters.

When considering which party is to retain companion animals the Court is not permitted to order a sharing arrangement but is required to take into account a number of factors in deciding who is to retain the companion animals such as:

1. the circumstances in which the companion animal was acquired;
2. who has ownership and possession of the companion animal;
3. the extent to which each party cared for, and paid for the maintenance of, the companion animal;
4. any family violence to which one party has subjected or exposed the other party to;
5. any history of actual or threatened cruelty or abuse by a party toward the companion animal;
6. any attachment by a party, or a child of the marriage, to the companion animal;
7. the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party; and/or
8. any other fact or circumstance which, in the opinion of the court, the justice of the case.

If a Judge at first instance exercises their “unfettered discretion” in making parenting Orders and/or property Orders but has made an error in taking into account facts which should not have been taken into account or not taken into account facts which should have been taken into account or otherwise not applying the law properly the aggrieved party is permitted to appeal to the Full Court of the Federal Circuit and Family Court of Australia.

Although it seems, on the face of it, that Judges are free to make whatever decisions they like and have an “unfettered discretion” the reality is that they must apply the principles of the Family Law Act in relation to how they are to decide cases, take relevant facts into account and give them sufficient weight and make decisions which are proper so that they are not open to criticism and the subject of appeal.

In the main Judges do an excellent job in administering justice and making decisions to finalise parenting and financial matters between parties to enable them to get on with their lives.  Very few cases have successfully challenged a primary Judge’s decision on appeal and if an appeal is brought and fails costs consequences follows.

Pearsons Lawyers

This is general advice only.  Pearsons Lawyers have a team of specialist family lawyers who can provide timely and accurate advice on all matters that need to be dealt with following a separation including parenting and property matters.  To arrange your free initial consultation contact Pearsons Lawyers today on 1300 699 688 and “know where you stand”.