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.

Lawyers as Peacemakers, Lawyers as Changemakers: Values-based Practices

Kim Wright

Cutting Edge Law, 1335 Paseo Del Pueblo Sur, #253, Taos, NM, 87571  USA.  Jkimwright@gmail.com

Workshop: 

From Conscious Contracts to Earth Jurisprudence to Sharing Law and a dozen other approaches, many new models of law practice are emerging.  These new models reflect the changing values of society and of the practitioners who choose to step out of the traditional ways of doing things.

In this workshop, we will first explore the emerging models.  Then, we will delve into the framework of purpose and values which often invisibly shape our journeys and bring it into awareness.  This exploration will help lawyers and other professionals to:

  • Align your interactions with others, and with the legal system, to your most important values and principles. Lawyers, learn how to deliver these innovative tools to your clients and bring them value in new and expansive ways;
  • Uncover the core principles that connect you to your stakeholders;
  • Use those principles as a lighthouse that can guide you through decision-making and disruptive events;
  • Transform events of conflict from challenges that threaten to destroy relationships to opportunities to build and strengthen them;
  • Access courage to be a changemaker.

This workshop is a shorter version of the day-long programs that J. Kim Wright presents around the world. It was developed in conjunction with her two American Bar Association books:  Lawyers as Peacemakers, Practicing Holistic, Problem-solving Law (ABA, 2010, Flagship book and best-seller) and Lawyers as Changemakers, The Global Integrative Law Movement (ABA, 2016, Flagship book).

Biography:

Kim Wright is a trailblazer in the area of integrative law, which the American Bar Association has said just might be the “next huge wave in the legal profession.” She is the editor and publisher of CuttingEdgeLaw.com, a treasure trove of multimedia materials about conscious innovators in law.

Kim is the author Lawyers as Peacemakers, Practicing Holistic, Problem-Solving Law [ABA Publishing, April, 2010]. Her second book, Lawyers as Changemakers, The Global Integrative Law Movement was published in 2016.

In 2009, the ABA named Kim as a “Legal Rebels, finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of lawyers.”

Kim’s mission is to  find, connect, support, and showcase those who are working toward manifesting a new legal system, based on peacemaking, problem-solving, and healing conflicts.  She leads continuing education programs and offers coaching and consulting for lawyers around the world.

Kim Wright has a Juris Doctor from the University of Florida, Levin College of Law and a Bachelor of Arts from Warren Wilson College.  She maintains an active law license in North Carolina.  Since 2008, she has been a full-time nomad.

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.

Conference Managers

Please contact the team at Conference Design with any questions regarding the conference.
Photography Credits: Destination NSW, Paul Foley, Bridge Climb Sydney
© 2015 - 2016 Conference Design Pty Ltd