Family Court: A Judicial Insight

with No Comments

Interviews by Family Court Judges are not common and understandably, due to the nature of the job and in no small part. They work in a field where public policy and legislation exist specifically to protect the identification of those involved in family law proceedings.

But what’s even more rare is an interview by a retiring Family Court Judge after 18 years on the bench. Judge Linda Dessau shared her judicial insights about family law litigation with the Australian Financial Review’s Matthew Drummond late last month.

Judges speak through their published judgements and occasionally speak at legal or social policy seminars, so after reading through the thoughts and comments of such a long serving and distinguished Judge, I found it rather refreshing.

It reinforced why Her Honour was so suited to the particular demands of the Family Court.  The piece contains a number of thoughtful insights from the Judge that reflect the perception and understanding of which she consistently displayed in her judicial role. Her Honour brought an understanding of the human condition, coupled with compassion and respect for litigants and lawyers appearing in front of her, which made her particularly suited to the family law jurisdiction.

Handpicked below are some Judge Linda Dessau’s valued reflections, suggestions and warning on Family Court:

  • Take time to reflect upon where you are in ligitation.
    While the fight can be all consuming, ask yourself “In a year or two, after it is over, will it really matter?” Whatever you’re fighting about, you have to satisfy yourself that in a couple of years time, it will matter. Otherwise don’t worry about it.
  • In relation to bad outcomes, Judge Dessau observed she had developed a strong view, “The best way to ensure that your case goes terribly off the rails, is if it starts badly.”
    Focus on getting it right at the early point of separation and avoid the temptation of responding “in an emotional and vindictive way”.
  • While fewer than 5% of cases that start in the Family Law Courts result in a final contested hearing, Her Honour expressed an understanding that “sometimes, there are good reasons to ligitigate”.
  • In matters involving children and a parent with mental health issues or where there has been family violence, it can be “unwise” to negotiate out of Court.
  • For Judge Dessau it was matters involving disputes about children that have been the “toughest” in her judicial career.  
  • In children’s matters going to trial, the Court receives reports from psychologists or consultants who have met with the parents and the children.   It’s with a tinge of sadness that Her Honour reflects.  

I sometimes read those reports and for me they’ve been among the most poignant moments in this role, where I have read clearly that the children adore both their parents.

The children are saying incredibly clearly and succinctly that they adore their parents and they just want the fighting to stop.”   

Often Judge Dessau would speak to the parents in Court in those situations, and she knew that the parents frequently understood the damage being done to the child but “with the limitation that they only see the damage being done by the other parent“.

  • Of property matters, Her Honour notes that few families had sufficient wealth or resources such that there was “plenty to go round” when one household became two.  Once parties pay for the costs of litigation, sometimes over years, there is even less to go round.

And the final suggestion from Her Honour, Judge Linda Dessau?

Get legal advice – “As much as you think you want the toughest, nastiest litigator, what you actually want is the toughest, most practical negotiator who knows when to litigate – and there are occasions when you should litigate. But what they know best is when to avoid litigating“.

Di Simpson is a Director at Dobinson Davey Clifford Simpson Family Law Specialists, 18 Kendall Lane, New Acton, Canberra ACT 2601 and can be contacted on (02) 6212 7600.