In Family Law matters in Western Australia, particularly in relation to the division of the matrimonial or “de facto matrimonial” property, there is no black and white answer. Family Law in Western Australia, and in the rest of Australia for that matter, is discretionary, but what does this actually mean?
There is no certain outcome should your matter proceed through the Family Court of Western Australia. The Court has a wide power to exercise its discretion which makes it nigh on impossible to predict with any certainty what a Judicial Officer would decide if the matter proceeded to a Trial. As we often say to our clients in property disputes: There is no mathematical formulae we can apply to assist us in coming to a conclusion about your dispute. If we were to describe your financial history and current circumstances, and your future needs, to 5 different Family Court Judicial Officers and ask them to give us an opinion as to an appropriate result as to the division of the property, we would probably be given 5 different answers”.
Discretion is defined in the Concise Australian Legal Dictionary as being “The power or authority of a decision maker to choose between alternatives, or to choose no alternative. Discretion is usually constrained only by the statute which prescribes the ambit of the court’s decision-making power.”
The legislation which provides to the Judicial Officers of the Family Courts their discretion in Australian and Western Australian family law matters is the Family Law Act 1975 for married couples and, in Western Australia, the Family Court Act 1997(WA) for de-facto couples. For more information on these pieces of legislation, please feel free to read our article “The Law that Governs Family Law”.
As no two Family Law matters relating to the division of matrimonial property are the same, an exercise of discretion is required to ensure, or try to ensure, that a “just and equitable” outcome is reached and to ensure that all relevant matters are considered. It enables Judicial Officers to make findings on a broad range of issues which may arise in each Family Law matter.
Some argue that Judicial Officers have too much discretionary power, whilst others argue that it is necessary for them to have a wide discretion to enable them to address the requirements of the Family Law Act or Family Court Act. Irrespective of an individual’s views in relation to this issue of discretion, the current law in Western Australia and Australia is that Judicial Officers have the power to exercise a wide discretion.
Section 79 of the Family Law Act requires Judicial Officers to exercise their undoubted discretion. This requirement is repeated in section 205ZG of the WA Family Court Act. Section 79 of the Commonwealth Family Law Act (and section 205ZG of the Family Court Act of WA) discusses the issues which must be “taken into account” when giving consideration to the division of property. These sections commence with the words “In property settlement proceedings, the court may make such orders as it considers appropriate.” This, of itself, demonstrates that discretion is required to be exercised in coming to any decision in relation to the division of property.
Section 75(2) of the Family Law Act and Section 205ZD of the Family Court Act also give Judicial Officers the power to exercise discretion. These sections provide for additional matters to be considered by Judicial Officers, sometimes referred to as the “future means and needs” factors, when making decisions in relation to property division and spousal maintenance. The legislation, however, does not specify how much weight should be given to each consideration or the specific impact each consideration should have, again demonstrating the existence of a wide discretion which has been given to Judicial Officers when exercising their decision-making powers under the relevant legislation.
Whilst the above discussion focuses mainly on financial matters in the Family Courts, Judicial Officers also have the power to exercise discretion in relation to parenting matters. Section 60CA of the Family Law Act, echoed in Section 66A of the Family Court Act, stipulates that the child’s best interests are the paramount consideration when making a parenting order. The legislation also specifies what issues are to be considered when determining exactly what (or who) is in the best interests of children. Obviously, the legislation cannot say specifically what arrangements may, or may not, be in the best interests of children as those arrangements will vary on a case by case basis. That question is, again, left to the discretion of the Judicial Officer given the unenviable task of making decisions in a parenting matter.
What this means for people who are engaging with the legal system, is that there is no certainty of outcome should your matter proceed through the Family Court of Western Australia. There is, however, likely outcomes which can be, with a certain degree of nervousness felt by even very experienced Family Lawyers, predicted. The most likely outcome, however, will depend on the facts of your case. The best way to understand the most likely outcome for your matter, and why any potential outcome may be described as “most likely”, is to obtain advice from an experienced Family Lawyer.
 Butterworths Concise Australian Legal Dictionary Third Edition. Lexis Nexis Butterworths 475-495 Victoria Avenue, Chatswood NSW 2067. (2010)
 FAMILY FARMING AND PROPERTY SETTLEMENTS UNDER THE FAMILY LAW ACT 1975 AND THE CATEGORY OF ‘SPECIAL CONTRIBUTIONS’ -MALCOLM VOYCE* University of Queensland Law Journal 2015 Page 344