Straight up or the Sphinx: when Judges speak up

Posted on February 19th, 2018

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In family law matters, judges often provide preliminary views and encourage parties to contemplate settlement.  A judge might make comments that appear to favour one of the parties over the other, or that appear to indicate a pre-judgment of an issue in dispute before the presentation of evidence.

In the case of Darley & Darley [2016], the mother sought to set aside Court Orders on the basis that she had agreed to Orders by consent because the judge had placed undue duress and influence on the parties to settle, by highlighting the benefits to each of them of reaching their own agreement.

The Full Court rejected this argument, making reference to the principles set out in the Family Law Act, that where possible “parents should agree about the future parenting of their children”; and determining that any encouragement by a judge to explore settlement is in line with the contemplation of the Act, and consistent with the judge’s duties.

This view is consistent with views previously expressed by the High Court, which has stated “At the trial level…judges…intervene in the conduct of cases to an extent that may surprise a person who came to Court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx… Judges express tentative views…Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented…”.


Ashleigh John, Associate Director at Mullane & Lindsay Solicitors, NewcastleAshleigh John is an Associate Director and Accredited Specialist at Mullane & Lindsay Solicitors and practices extensively in Family, Relationship and Matrimonial LawIf you require any assistance in this area please contact Ashleigh John to arrange a consultation or contact our Newcastle office.

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