Fact finding in Family Law disputes

Mrs Hilary Hannam1

1Family Court Of Australia, Parramatta, Australia

Fact finding in family law disputes, particularly in relation to allegations of family violence and child abuse presents many challenges for litigants and judges. This is especially so when many litigants are self-represented and victims may be required to cross examine or be cross-examined by parties who are alleged perpetrators. Nonetheless it is critical that all evidence relevant to the best interests of children be put before the court and be appropriately tested.

Family law disputes can also be protracted especially in the current climate of under resourcing. The result may be that children may endure unsatisfactory arrangements while their parents’ dispute progresses through the court system. Most of the parents utilising the Family Court who have been unable to resolve their dispute by alternate means have complex problems including mental illness, psychological disorders or substance misuse.

Division 12A of Part VII of the Family Law Act which requires that the court adopt a less adversarial approach to the conduct of child-related proceedings can assist in addressing these challenges. The author will outline how a judge of the Family Court can utilise the tools of the “less adversarial trial” to assist families embroiled in parenting disputes. These include early identification of risks to the children through the utilisation of family consultants attached to the court to inform early decisions such as interim orders. As the matter progresses the judge actively manages all stages of the litigation and leads the identification of the issues. Fact finding is enhanced through a relaxation of the rules of evidence and appointment of a single expert. As the proceedings are not strictly inter-partes the judges may identify proposals for the future parenting arrangements and is not bound by the proposals of the parties. The judge is expressly empowered to ask questions and required to direct the litigation with a focus on the best interests of the children.

It is argued by the author that the adversarial system of justice has its merits, especially as a method for fact finding, but some of the unsatisfactory features of adversarialism can be reduced through such a less adversarial approach. This less adversarial approach also has the advantage of enabling the judge to act in a more problem-solving and therapeutic manner with litigants in highly emotionally charged and complex litigation.

Biography:

Justice Hannam completed a Bachelor of Arts and Bachelor of Laws (Honours) from the University of Sydney in 1983. After practising as a solicitor, her Honour sat as a Magistrate of the Local Court of NSW from 2010, until her appointment as Chief Magistrate of the Northern Territory Local Court in August 2010. Her Honour then sat in Darwin and travelled to rural and remote locations in the Territory on circuit. Her Honour was then appointed to the bench of the Family Court in 13 August 2013.

Her Honour has a particular interest in therapeutic jurisprudence, and travelled to the United States in 2002-2003 as a Churchill Fellow to investigate specialised courts. Her Honour has been particularly taken by the Less Adversarial Trial process in the Family Court. Her Honour also has a particular interest in the children’s jurisdiction having worked in the Children’s Court in NSW, in youth justice and care and protection in the Territory and now parenting cases in the Family Court.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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