The argument of this article is that the law on family property in Australia is plagued with uncertainty at its very core, and that the Full Court of the Family Court, as the primary appeal court in this jurisdiction, is structurally incapable of providing doctrinal coherence. Decisions of the Full Court, which ought to provide guidance to trial judges, are quite often inconsistent in their approach to similar fact situations, both in terms of reasoning and outcome. This makes it very difficult to settle cases in the shadow of the law except in fairly straightforward matters. As a consequence, family property law is for the most part, a practice without a theory.
The paper concludes with consideration of whether and how the coherence of this area of law can be restored to allow people to bargain in the shadow of a reasonably settled body of law. It is argued that the problems – which have very serious consequences for the general public – are unlikely to be resolved without major structural reform to the Full Court of the Family Court, more prescriptive legislation or both.
Parkinson, Patrick, Why are Decisions on Family Property So Inconsistent? (December 10, 2017). Australian Law Journal, Vol 90 No 7, 498-526, 2016; Sydney Law School Research Paper No 17/94.