Wednesday, 13 August 2008

Family Court case: keep it short and to the point

In the recent Full Court of the Family Court case of Dylan and Dylan, appeals were made about both property and children's matters.

The Full Court judgment is most significant because of its beginning, which is this shot across the bows of trial judges:

Some sublime articulations of legal principles and of the philosophies and policies underpinning them appear in cases in which the expression was not strictly necessary to the disposition of the particular cause. However, usually, the statements were closely connected with the essential legal points in the case and were made by appellate courts, with a responsibility for development and explication of the law.

A trial judge’s primary function is to decide the case before the court and explain the result, but from time to time a trial judge too might go beyond that task and do so to the great benefit of the law. However, a trial judge embarking upon discussion superfluous to the discharge of the primary role may provoke an appeal, based on the proposition that the irrelevant considerations may have influenced the final result.
That is one of the arguments in this appeal.

If such a judgment is to survive, the appeal court may well need to find that the discussion could not possibly be connected to the result. That finding may provoke the thought that the discussion in the trial judgment might have been better placed in a law journal.

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