Citation(2018) 30 SAcLJ 427
Publication Date01 December 2018
Date01 December 2018
AuthorProfessor the Honourable Nahum MUSHIN AM BJuris, LLB (Monash University); Adjunct Professor of Law, Monash University; Member, General Division, Order of Australia.

Ethical practice by lawyers is fundamental to the rule of law and access to justice. That applies to practice in every jurisdiction. However, some jurisdictions impose additional ethical requirements which arise from their jurisprudence. That is nowhere more applicable than in family law. The overall discretionary nature of family law and, in particular, its emphasis on the paramountcy of the best interests of the child, create conflicts for practitioners, which can be difficult to resolve. This article considers universal ethical issues and many additional requirements imposed by the family law jurisdiction.

I. Introduction

1 The law is the means by which a society regulates itself. Whether it be the side of the road on which we drive or the consequences of killing someone, that regulation is fundamental to orderly conduct. Laws are made by the Legislature and defined and enforced by the legal system which comprises the courts and the legal profession.

2 Accordingly, the legal system is in a fundamentally important position in the orderly conduct of a society. In applying the law, the legal system must act without fear or favour and ensure the protection of the rights of each individual. That places a heavy burden on all aspects of the legal system which must clearly define its roles and the way in which it will conduct itself. That definition is often referred to as “professional conduct”, which in turn has been referred to as “the law of lawyering”.1

3 But the rules of professional conduct are only part of the picture for the practising profession. There is an additional aspect to what might

be called proper conduct in legal practice. That is the requirement of professional conduct being undertaken in an ethical manner. As Christine Parker and Adrian Evans wrote:2

However, lawyers must also have an ethical perspective on being a lawyer in order to judge what rules should be made (on a professional level) and also to decide (on a personal level) what the rules mean, how to obey them, what to do when there are gaps or conflicts in the rules and whether, in some circumstances, it may even be necessary to disobey a particular rule for ethical reasons …

4 It will be evident from the quotation in the last paragraph that viewing rules of professional conduct from “an ethical perspective” requires personal decision-making over and above the provisions of any particular rule. That requires making decisions of what is right and wrong, particularly in circumstances where that decision potentially requires the disobedience of a rule. In doing that, we must understand our own perspective of the particular situation on which we are making that decision. It follows that we also need to have formed our own view of the potential alternative solutions and have decided on our preferred solution.

5 This article considers the role which ethical practice plays in the administration of justice and in the whole legal system. It considers a number of particular areas in the application of ethical practice both generally and in particular, as they apply to family law. The dilemmas are illustrated by examples from other areas of the law and applied to the practice of family law.

II. Role of value judgments

6 The term “value judgment” may be defined as “a judgment predicating merit or demerit of its subject”.3 By way of example, the statement “murder is a crime” is a statement of fact. The statement “murder should be a crime” is a statement of value or a value judgment.

7 We all make value judgments constantly in our everyday lives. Of immediate relevance is the proposition that value judgments are fundamental to the process of identifying alternative solutions to a particular problem and determining our own preferred solution.

8 While most value judgments we make on a day-to-day basis are relatively straightforward, there are times when a situation poses

alternatives which are at least extremely difficult and at times impossible to resolve. Take the classical philosophical problem of being placed in a position in which you are able to save 19 lives on condition that you shoot one person. You do not know the identity of any of the 20 possible victims. Do you shoot? Are you capable of shooting somebody?

9 There are those who would decline to take responsibility for saving 19 lives, usually on the basis that they could not kill anyone. That concept is referred to as “deontological ethics”. Others would say that not only are they capable of killing someone but it is the right thing to do because it would save 19 lives. That concept is referred to as “teleological ethics”. The problem is open to further complication if you add the proposition that the 20 potential victims are identified. If they included a war criminal you might take the approach of being able to kill. Likewise, you may well be persuaded to kill one person if the victims included somebody who you knew and were close to.4

10 Consider this example from family law. The present author suggests that the physical punishment of a child should be a crime. The nature of the punishment of the child should only go to the question of penalty. That is a value judgment on the author's part. That value judgment is not a matter of universal agreement. There are those who regard corporal punishment of a child as being an important part of discipline and therefore the child's upbringing. However, the person who regards corporal punishment of a child as being acceptable must make a value judgment of whether all corporal punishment is permissible or whether it is necessary to draw the line at some point. Is it acceptable to smack a child on the arm with an open hand but unacceptable to punish a child with a knee to the stomach? A rejection of the proposition that all corporal punishment is contrary to the best interests of the child requires a value judgment of what is acceptable.

III. Value judgments and family law

11 The process of decision-making in family law is replete with value judgments. Probably more than any other area of the law, family law is discretionary. In Australia, the law provides:5

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Likewise, internationally, the United Nations Convention on the Rights of the Child provides:6

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

12 The Australian legislation provides a number of matters which the court is required to consider in determining whether to make any, and if so what, parenting order.7 The last of those is:

(m) any other fact or circumstance that the court thinks is relevant.

Accordingly, the court is not required to make any particular order. The court is not required to make any order if it determines that the best interests of the child require that outcome. While the legislation specifies a number of matters which must be considered in that determination, the last of the factors quoted creates a discretion which requires value judgments with regard to whether there is any other such fact or circumstance and if so, how they should be applied.

13 For example, the father of a young child seeks contact following his separation from the child's mother. The evidence establishes that he loves and has never harmed the child in any way. However, the evidence also establishes that he has perpetrated significant family violence against the mother. Given his relationship with the child, is the perpetration of violence against the mother relevant to the question of contact? The present author suggests that it is clearly relevant. Apart from anything else, the violence establishes that the father is an inappropriate role model for the child.

14 The potential for damage to a child arising from family violence between his parents was clearly articulated by the Victorian Law Reform Commission in its report on family violence in the following terms:8

Even if a child or young person is not a direct victim of family violence, witnessing family violence and living in a household where family violence takes place can be extremely harmful.

15 In considering whether to make an order for the alteration of property interests following the breakdown of the marriage, the relevant Australian legislation provides:9

The court shall not make an order under the section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

The process by which the court determines that it is satisfied that it is just and equitable to make an order is a process of exercising value judgments.

16 In that context, consider this example. The parties separate following a marriage of 20 years. They have two teenage children. Throughout their marriage, the husband has been the sole breadwinner and the wife has been the sole homemaker in parent. The evidence establishes that the wife has a severe and chronic gambling addiction. For the last ten years she has spent between $800 and $1000 each week on poker machines at the local casino, a fact which, on the husband's evidence, was fundamental to the breakdown of the marriage.

17 In the property proceedings, the husband argues that the wife's gambling addiction should be regarded as a negative contribution by her, thereby entitling him to a larger proportion of the assets. It is understandable that one's instincts result in sympathy for the husband's assertion. However, consider the question of the source of the funds to enable the wife's gambling. The husband has been the only breadwinner and had control of those funds. It would be perfectly straightforward for him to have cut off that source. Should the required value...

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