Judicial Discretion and Family Law

In Australian family law, judicial discretion plays a central role in determining the outcome of cases. While legislation sets out the broad rules of family law, judges still need to make a significant number of decisions when applying this law to realise just and equitable outcomes. This discretion is particularly important in disputes related to parenting arrangements, property settlements, and spousal maintenance, as these matters relate to the complexity of the modern family, and without judicial discretion the application of the law might result in unfair outcomes. This article examines the scope of judicial discretion in Australian family law, exploring key principles, statutory guidelines, and relevant case law that shape judicial decision-making.

Judicial discretion

Judicial discretion refers to the ability of a judge to make decisions based on their interpretation of legal principles, statutory provisions, and the specific facts of a case. In family law, this discretion is broad because no two cases are exactly alike, and the law must accommodate a variety of personal and financial circumstances.

The Family Law Act 1975 (FLA)grants courts extensive discretionary powers, particularly in:

1. Parenting Orders – Determining what arrangements are in the best interests of the child.
2. Property Settlements – Dividing assets and liabilities between separating parties.
3. Spousal Maintenance – Deciding whether one party should financially support the other.
4. Relocation and Child Abduction Cases – Assessing the impact of relocation on a child’s welfare.

While discretion allows flexibility and individualised justice, it also introduces a degree of unpredictability, as different judges may interpret facts differently. To mitigate this, courts rely on precedence to promote consistency across time. Broadly speaking, a judge will apply their discretion in a manner which is consistent with the exercise of discretion of higher courts in the same court structure.

Discretion in parenting matters

One of the most critical areas where courts exercise discretion is in parenting matters. Section 60CA of the FLA mandates that the best interests of the child must be the paramount consideration when making parenting orders. This principle is further elaborated in section 60CC, which outlines the factors that the court must consider:

• the safest arrangement for the child and anyone who has parental responsibility for the child, particularly given any family violence orders or history of family violence, abuse or neglect
• the child’s views
• the child’s cultural, emotional, psychological and developmental needs
• the capacity of each party to exercise parental responsibility and provide for the child’s needs
• the benefit of the child having a relationship with each parent and other significant people in the child’s life
• any other relevant circumstances.

Importantly, while all these factors provide structure to a parenting matter, each judges retains discretion in weighing the importance of each factor in individual cases.

Family courts now exercise an even broader discretion. Under recent amendments, there is no longer a requirement for a judge to presume that equal shared parental responsibility is in the best interests of a child. This change places a much greater emphasis on the court’s discretion to assess whether both parents should be involved in major decisions regarding the child.

Discretion in property settlements

The Federal Circuit and Family Court (or the Family Court of Western Australia) uses a multi-step test to determine a property settlement following the breakdown of a marriage or de-facto relationship. When determining property settlements, the courts follow a discretionary approach based around:

1. Identifying and Valuing the Property Pool – Determining the assets and liabilities of both parties.
2. Assessing Contributions – Evaluating financial and non-financial contributions by each party.
3. Considering Future Needs – Examining factors like age, income, health, and care responsibilities.
4. Achieving a Just and Equitable Outcome – Ensuring fairness based on all circumstances.

Each step requires judicial discretion, particularly in assessing contributions and future needs.

In Stanford v Stanford (2012), the High Court ruled that property settlements must be “just and equitable”. As such, there must be a careful consideration of individual circumstances in each property division, rather than applying rigid formulas (such as 50/50 for long relationship). Courts have discretion in deciding how to weigh different contributions. For example, a party who sacrificed their career to raise children may not have made the same amount of direct financial contribution. While financial contributions are quantifiable, the courts consider non-financial contributions (such as homemaking and child-rearing) to be equally significant.

Discretion in spousal maintenance

Spousal maintenance is another area where courts exercise significant discretion. Under section 72 of the FLA, a party may be entitled to maintenance if they cannot adequately support themselves due to:

• age or health issues
• care responsibilities for children
• lack of income or employment opportunities.

In maintenance cases, judges must balance the needs of the applicant against the financial capacity of the other party. The courts have shown that maintenance orders are not granted automatically but must be based on a detailed assessment of financial dependency and necessity. The duration and amount of maintenance are also discretionary, with courts often considering whether the applicant can become financially independent over time.

Judicial discretion is an essential feature of family law in Australia, allowing courts to tailor decisions to the unique circumstances of each case. While discretion provides flexibility, it also introduces challenges, including unpredictability and potential bias. For any further information about discretion of the court in family law matters in Australia, please contact Go To Court Lawyers on 1300 636 846.