Constitutional Law and the Limits of Discretion in Family Property Law

AuthorPatrick Parkinson
Publication Date01 March 2016
Date01 March 2016
Patrick Parkinson*
The argument of this Article is that the width of discretion that trial judges have to alter
property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The
property aspects of the Act can only be valid to the extent to which the law i s an
appropriate application of the marriage and divorce powers in the Constitution or is
within the boundaries of the States’ reference of powers about de facto relationships.
These constitutional provisions place significant constraints upon judicial discretion. In
relation to marriages, the need to adjust property rights must result from the
circumstances of the marital relationship or be justified as a consequence of the financial
impact upon a party of its breakdown. The authority of Parliament t o make laws
concerning the altera tion of the property rights of de facto partners is limited to cases
of relationship breakdown.
Furthermore, the Famil y Court of Australia and the Federal Circuit Court of
Australia are both Chapter III courts. That has implications for the kind of discretio n
that Parliament can lawfully confer upon the trial judge, and the limits of that
discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view
of judicial discretion which, it is argued, is inconsistent with the nature of judicial power
in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty
to follow the interpretation of the Act as established authoritatively by appellate
decisions, taking account of guidelines in appellate judgments; the duty to give reasons
that explain the outcome of the case, and in particular, to justify the alteration of legal
and equitable interests in specific items of property; and the duty to avoid arbitrary and
capricious decision-making.
The current jurisprudence on family property law is not necessarily c onsistent with
these constitutional limitations.
Discussion of almost every appeal in family law begins with a line to the effect that ‘this
is an appeal from a discretionary judgment …’. There follows a boiler-plate citation of
one or more passages from High Court judgments concerning the discretion conferred
upon the trial judge, and the limitations on appellate interference.
* Professor of Law, University of Sydney.
50 Federal Law Review Volume 44
Discretion is a feature of many areas of law: sentencing, damages awards, re medies
for breach of consumer protecti on legislation, and numerous other contexts in which
judges determine the consequences that fl ow from a case which is proven. Discretion
has many uses. It allows the legislature to set out broad principles and objectives, while
allowing trial judges some flexibility to apply those principles to the circum stances of
the individual case. It allows for a body of principle and precedent to emerge over time
from careful consideration of the myriad different circumstances that might otherwise
be poorly covered by a single rule. It allows for consideration of the respective merits
on both sides of an argument. Discretion allows for nuance.
When discretion is invoke d in the context of family pro perty proceedings, it is
sometimes acco mpanied by commentary on the width of the discre tion that the trial
judge has. Indeed, Gibbs J in De Winter v De Winter referred to it as an extraordinarily
wide discretion.
That discretion, according to s 79 of the Act (in relation to marriages)
and s 90SM (in relation to de facto relationships) requires evaluation of both the past
and the future. The court must determine whether i t is just and equitable to alter
property rights taking into account the contributions made directly or indirectly to the
acquisition, conservation or improvement of property and to the welfare of the family
as homemaker and parent. The court must also consider the factors contained in s 75(2)
of the Act (or s 90SF(3) for de facto relationships), so far as they are relevant. These are
the same factors that t he court must consider in making determinations abo ut spousal
maintenance. For that reason, the orientation is, for the most part, towards future needs,
but other matters fall for consideratio n under this section as well, including
superannuation rights.
The Full Court of the Family Court has held that consideration of the s 75(2) factors
is not li mited to need,
and for this reason amongst others, the discretion involved in
putting a value on s 75(2 ) factors is particularly broad. Even if the discretion were
limited to future needs, the extent of that need may well be d ifficult to predict. For
women with the care of children, for example, much may depend upon whether they
repartner and the extent of their capacity for well-remunerated employment. Research
indicates that women with children who repartner tend to recover the financial position
they were in before the marriage breakdown, whereas for women who have interrupted
workforce participation to care for children, and who do not repartner, the road to
financial recovery can be long and arduous.
The assessment of contributions ought to yield more consistent and predictable
results because the examination is necessarily a retrospective one. That exercise is
complicated by the requirement in s 79(4)(c) of the Act (or 90SM(4(c) for de facto
relationships) to evaluate the contribution of a spouse as homemaker and parent. When
the A ct was originally enacted, this was not open-ended and there were re asonably
clear principles of quantification implicit in the structure of the legislation. The Court
was originally required to evaluate the contribution made directly or i ndirectly to the
acquisition, conservation or improvement of the property by either party, including any
contribution made in the capacity of homemaker or parent. Contributions to the
welfare of the family were understood as indirect contributions to the property
(1979) 23 ALR 211, 218.
Collins and Collins [1990] FLC 92-149.
Australian Institute of Family Studies, Settling down: Pathways of parents after div orce,
Monograph No 13 (1993).

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