Questions

• Who profits the most from prolonged, conflict-ridden cases?

• Why are penalties for perjury and cost orders so rarely applied in family law cases? 

• Does the lack of perjury enforcement encourage dishonesty and manipulations in family disputes?

• Why are costs so rarely awarded for unreasonable positions and behaviour?

• If lawyers know there are no real consequences, for them or their client, how does this influence their advice?

• Who shapes the strategy of family law cases? What incentive do lawyers have for quick resolutions? 

• What changes are needed to create a fairer, more accountable family law system? ​​

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A Behavioural Economics & Game Theory Perspective

Legal practitioners widely recognise that costs are rarely awarded in family law matters, even for unreasonable, improper conduct and wholly unsuccessful claims. They also freely admit that perjury is rarely, if ever, prosecuted.

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So, when unreasonable positions are taken and/or false claims are made without the risk of costs being awarded or perjury prosecuted, this incentivises such behaviour due to minimal consequences and potential high rewards.

What are the impacts of this on the legal system? 
 

• Incentives for Prolonged Litigation: The low likelihood of cost recovery creates a perverse incentive structure. Lawyers and/or clients may calculate that the potential gains from unreasonable and/or vexatious litigation outweigh the low risks. This leads to strategic abuse of the legal system, as the financial rewards of prolonged litigation are substantial.

 

• Beneficiaries of the System: The biggest winners in this scenario are the lawyers. If a party is unreasonable, their lawyer benefits. Additionally, the lawyer representing the opposing side, sometimes through no fault of their own, also benefit financially from the litigation, regardless of the outcome. Their earnings are guaranteed, while any potential costs are negligible.

 

• Losers in the System: One, or all, of the parties are likely losers under these conditions. If a party is unreasonable, in either property or parenting matters, the ultimate judgement, if decided by a Judge, will be similar to that if they were reasonable. However, the cost to them is much greater due to the unreasonableness, as is the cost to the opposing party. 

If costs were consistently awarded in all circumstances where it is justified:

 

• Lawyers would strongly discourage unreasonable and/or vexatious claims: The high probability of cost recovery would compel lawyers to more strenuously advise their clients against pursuing claims lacking merit. This is because the financial risk of being ordered to pay costs would outweigh the potential benefits of frivolous litigation.

 

• Parties liable for costs would seek recompense from their lawyers: Clients who are ordered to pay costs due to pursuing unreasonable claims would be more likely to seek costs from their lawyers. They would argue that the advice to pursue such claims was flawed, creating a financial liability for the legal advisors.

 

• Lawyers would have a stronger incentive to advise against unreasonable claims: To avoid potential financial repercussions and maintain professional integrity, lawyers would have a heightened incentive to advise clients against vexatious litigation. This would lead to more prudent and ethical legal practices.

Currently very few intended incentives/disincentives seem to function effectively or at all. Instead, the system fosters an environment where the low probability of cost recovery encourages unreasonable and vexatious claims. This systemic issue benefits lawyers who pursue such claims, undermining the integrity of the justice system.

Other similar issues seem to be pervasive throughout the Family Law system, particularly in cases of perjury, which are rarely prosecuted. Consequently, lawyers may not strongly advise against perjury, even when they suspect or know it is occurring.

 

This increases conflict, deception, and adversity within the justice system.
 

In a system where there are minimal consequences for unreasonable behaviour, misconduct, and perjury, parties are more likely to engage in such actions, effectively doubling their chances of achieving or exceeding their desired outcomes. As a result, or perhaps because of, legal fees end up being much higher. 

 

Game theory, applied to the Family Law system, is similar to the following:

 

 

 

 

 

 

 
 

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Fundamentally, the laws intended to prevent unreasonable behaviour, dishonesty, and excessive litigation, while promoting mediation and constructive solutions, are not being enforced and often seem not to exist at all.

 

And where laws are not enforced, it is the norms which dictate the operation and ethics of the system – it reaches its homeostasis. 

For example, there are many Registrars/Judges who acknowledge that they were misled in court, yet there are no consequences – at all - for this behaviour. It is likely the lawyers involved were aware that there would be little to no repercussions. Not a lot different to travelling at 119 km per hour in a 110 zone, knowing full well they won’t be fined even if they are pulled over. 

Furthermore, Section 121 of the Family Law Act criminalises publicising case details and outcomes, even when individuals have acted unreasonably and dishonestly without repercussions. 

While the public remains mostly unaware of such practices, lawyers, who are aware, continue to advise and conduct proceedings under these norms.
 

For the justice system to function effectively, and the public to have faith in it, it is crucial that parties and legal representatives are held accountable for unreasonable and/or dishonest conduct. 

If the conditions of an environment are changed, the organisms within it adapt and change, and the system changes with it.  

 

The Case for Reform

To address these systemic failures, reforms must realign incentives toward ethical conduct and efficient dispute resolution:

1. Consistent Cost Awards: Establishing clear and enforceable rules for cost recovery in cases of unreasonable conduct would compel lawyers to dissuade clients from pursuing meritless claims, reducing frivolous litigation.

2. Prosecution of Perjury: Strengthening enforcement of perjury laws would deter dishonest conduct and uphold the integrity of the legal process.

3. Incentivizing Ethical Practice: Lawyers should face professional liability for advising or enabling vexatious claims, encouraging adherence to ethical standards and reducing systemic inefficiencies.

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Systemic Accountability and Behavioural Change

The application of behavioural economics and game theory to family law highlights the need for systemic accountability. By addressing the root causes of these dysfunctions—weak enforcement mechanisms and misaligned incentives—a reformed family law system can better serve the families and children it was designed to protect. A Royal Commission is essential to uncover these challenges and implement targeted reforms that promote fairness, efficiency, and ethical conduct in family law proceedings.