In my view it is inexcusable for a civilised society to subject such people to the complexity, remoteness, hostility and disinterest of the adversarial system. A system that was derived from trial by battle - which still calls its major process a trial, which still issues requests for documents sub poena - and which tends to increase the suffering and disorientation of people who are already suffering enough. The inappropriateness of the adversarial system for the resolution of family law disputes is already well understood by courts and lawmakers in this area. This is evidenced by ongoing attempts to make family law dispute resolution “less adversarial”. In my view, this tentative and half-hearted approach has only produced what might be called “stunted adversarialism” - an uncomfortable hybrid system that is in many ways worse than the system it replaces. Take for example the “relaxation” of the ordinary rules of evidence in parenting proceedings. A sensible approach would be for the strict rules of evidence not to apply, and for most evidentiary material to be dealt with in terms of relevance, and also its probative value or weight. However (in WA at least) our hesitation in applying this approach has left us with the bizarre outcome that the rules of evidence might or might not apply depending on the circumstances. So rather than have a robust and easily understood system of evidence, litigants are cast into an uncertain evidentiary environment where they won’t know until a late stage whether the rules of evidence will or won’t apply. Stunted adversarialism produces other kinds of injustice. A particular case arises when you have one party who is unrepresented.
In my view it is inexcusable for a civilised society to subject such people to the complexity, remoteness, hostility and disinterest of the adversarial system. A system that was derived from trial by battle - which still calls its major process a trial, which still issues requests for documents sub poena - and which tends to increase the suffering and disorientation of people who are already suffering enough. The inappropriateness of the adversarial system for the resolution of family law disputes is already well understood by courts and lawmakers in this area. This is evidenced by ongoing attempts to make family law dispute resolution “less adversarial”. In my view, this tentative and half-hearted approach has only produced what might be called “stunted adversarialism” - an uncomfortable hybrid system that is in many ways worse than the system it replaces. Take for example the “relaxation” of the ordinary rules of evidence in parenting proceedings. A sensible approach would be for the strict rules of evidence not to apply, and for most evidentiary material to be dealt with in terms of relevance, and also its probative value or weight. However (in WA at least) our hesitation in applying this approach has left us with the bizarre outcome that the rules of evidence might or might not apply depending on the circumstances. So rather than have a robust and easily understood system of evidence, litigants are cast into an uncertain evidentiary environment where they won’t know until a late stage whether the rules of evidence will or won’t apply. Stunted adversarialism produces other kinds of injustice. A particular case arises when you have one party who is unrepresented.
family-law_-56._peter_curry_submission.docx