This discretion powers is given when using powers to apportion property in a divorce settlement or in the making of decisions related to the bringing up of children.The decision-maker was encouraged to take into consideration the consequences of his or her decision in individual cases.
The main premise of a decision in a property distribution case was associated with a ‘just and equitable’ distribution after assessing the circumstances of the case. How just and equitable was determined was dependent on the Court decision maker.
As a result of this discretion, much of the decision making has rested on case law over time, in particular in relation to contributions made to property and whether any family violence has taken place. Because of the discretionary nature of the Family Law Act 1975 it is difficult for anyone to know what may be the outcome of, for example, a property settlement without referring to previous court decisions.
In recent years, this discretion has been reduced, which includes the introduction of the second stage of the child support scheme in 1989, which removed the Court’s jurisdiction to make new orders for child maintenance in respect of certain children and introduced a statutory formula for the assessment of child support liabilities.
A second revision was in 1996 on shared parental responsibility for children after divorce. This was replaced with a rule which clarifies whether the parent who did not have custody should have any formal ongoing legal status with the child or children.
Using clear laws and not allowing discretion in court decisions means that most decisions take a shorter time to be reached than if discretion had been used. This is more cost effective for the parties concerned, but makes it more difficult for the decision maker to reach a decision based on extenuating circumstances.
There was a case recently in the Family Court where one of the partners claimed he had added significant wealth to the marriage through superannuation investments, so asked the court to award him a greater share of the assets.
The court used its discretion and awarded him 2/3 of its value. This was later overturned through an appeal by the ex wife as it was considered an unjust way of dividing an estate. Allowing the courts discretion is often a longer route to settling property disputes, but brings to light more information to be considered. If there was no discretion allowed, the assets would be divided according to current laws.