Where’s my pound of flesh?

pound of flesh

When the relationship of two people comes to an end it’s not uncommon for one, or both, parties to have a desire to see their former partner ‘punished’ or heavily criticised by the Court for their prior conduct.

The reality is, however, that this happens relatively infrequently and people who have pressed litigation in the hope that their former partner would be punished by the Court are often left somewhat deflated at the end of the process if they feel that the other party has ‘gotten away with it’.

The Court certainly has the power to hold people accountable for their conduct however they will not do so simply to give the other party vindication. Rather, the Court’s preparedness to make such determinations and/or comments will be determined by whether such a step will assist the Court in resolving the matter.

This is particularly so in parenting matters where the parties are likely to have an ongoing relationship after the Court proceedings are concluded.

In the case of Carlson & Fluvium Judge Kent made the following comments in relation to credit findings in parenting matters, and whether such findings are required in order for the court to dispense with the issue in front of them:

165. As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.

166. To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.

167. Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.

168. These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.

169. Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but an appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.

In short, if adverse credit findings are unnecessary in order to resolve the dispute, and if such findings may provide the parties with ‘ammunition’ for future conflicts, there is little to be gained by the Court making such findings. Accordingly, they often will no do so.

For this reason, it is important to consider whether the commencement, or continuation, of proceedings, are necessary to resolve a matter or whether there are other more efficient ways for a matter to be resolved.

Please contact our Accredited Family Law Lawyers Andrew Crooke or Dean Foley for further information or to make an appointment.

 

Prepared by Dean Foley

This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.

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