Systemic Failures
This page highlights how discretionary decisions, when aggregated, contribute to systemic failures across institutions, perpetuating harm, inequality, and inefficiencies. Following the 80/20 principle, where 20% of actions or decisions drive 80% of the outcomes, this page aims to spotlight that critical 20%.
Perjury Gaps
Perjury is a criminal offence but falls outside the investigative powers of the Family Court. In 2019, the Court referred only one case to the Australian Federal Police (AFP).
The Court does not track referral numbers, and the AFP lacks clear reporting pathways for family law-related offences such as perjury. How can you manage what isn't measured?
Centralised Decision Making
A centralised approach defers significant issues to final hearings, limiting the Court's efficiency in addressing discrete matters like perjury. Leveraging independent experts for preliminary assessments could deter dishonesty, expedite resolutions, and alleviate the burden on judges. This would align with the FCFCOA’s goal of resolving disputes efficiently and fairly.
Judicial Discretion = The System
The Family Law Act is enacted by the Commonwealth, but it is the Court's enforcement decisions that ultimately influence how parties play the game, more than the rules themselves.
An individual decision may seem insignificant in isolation, but its impact becomes evident when considering the cumulative effect of such decisions on the system as a whole.
Systemic Effects of Discretionary Decisions
Examples of Systemic Failures
Examples from various systems show how unchecked discretion can lead to systemic failures:
Institutional Child Abuse: Schools, churches, and other organisations failed to report allegations of abuse. Many reports were dismissed, ignored, or suppressed across decades, as a result survivors endured ongoing abuse, and perpetrators were allowed to continue harming others.
Sub-Prime Mortgage Crisis: Banks approved loans to sub-prime borrowers with poor credit histories. Millions of risky loans were bundled into financial instruments, spreading systemic risk resulting in a global financial system collapse, triggering a severe economic crisis.
Bank Lending Practices in the UK: Banks refused loans in certain neighbourhoods based on race or economic status. Widespread exclusion of minority communities from credit and housing opportunities and from that systemic economic inequality and generational poverty was created in marginalised communities.
Key Point: These examples highlight how discretionary decisions, when aggregated, perpetuate harm, inequality, and crises across societies.
Findings from the Royal Commission into Institutional Responses to Child Sexual Abuse
The Royal Commission uncovered systemic failures driven by institutional inaction and prioritisation of reputations over accountability. These findings parallel the failures observed in family law and other systems.
Key Point: Systemic failures—marked by inaction, neglect, and the prioritisation of reputations over accountability—have enabled ongoing abuse, denied justice to survivors, and eroded public trust in systems designed to protect the vulnerable.
Perjury in Courts: Lack of Prosecution and Systemic Impact
When applied to the issue of perjury in family law, the same systemic issues arise.
Key Point: The failure to address perjury in family law perpetuates dishonesty, undermines trust in justice, harms children and families, and reinforces inefficiencies that prioritise expediency over fairness and accountability.
Conclusion
Systemic failures across institutions, including family law, reveal patterns of inaction, neglect, and prioritisation of expediency over accountability.
Just as institutional failures to address child abuse enabled ongoing harm and eroded public trust, the failure to address perjury in family law perpetuates dishonesty and undermines confidence in justice. Both highlight the urgent need for transparency, accountability, and systemic reform to protect the vulnerable and restore public trust.
If the frequency of unprosecuted perjury is not tracked or addressed, its cumulative impact cannot be understood—nor can it be resolved.
Further, if lawyers are aware of the frequency of unprosecuted perjury, how might this affect their ethical obligations, the advice they give, and the conduct of cases billed hourly? High-conflict cases are profitable, and like bankers who profited from subprime mortgages without bearing the risk, it would be naive to assume the legal profession doesn't similarly benefit from pursuing "subprime" cases - that hold no risk to them.
Transparency and reform are essential to break the cycle of inefficiency and systemic harm.
Judicial Discretion
If judicial discretion is not permitted for drink driving offenses, resulting in mandatory license bans...
Why, in practice, are there no consequences for perjury in Family Court, other than being 'discredited'?
Why do Registrars and Judges frequently overlook instances of perjury without referring them to the AFP?
Why isn't there a section on the AFP website for the public to report perjury in Family Court proceedings, especially given the State Police say they have no jurisdiction over it?
Why isn't there a section on the AFP website to report perjury in the Family Court?
Who benefits the most from the lack of consequences?
The answer is liars, and the lawyers that represent them, as well as the lawyers end up defending the victims of those lies.
In the Family Court system, the norms appear to reward those who lie first and decisively. This places the opposing party at a significant disadvantage, effectively starting 100 metres behind. Given the lack of penalties for dishonesty, what rational incentive exists to refrain from such behaviour?
Lawyers often overlook it, unethical lawyers may even encourage such behaviour, knowing it fuels conflict and therefore increases profit and the length of time the matter appears before the courts.
What impact would it have on the Courts if it became mandatory to refer and prosecute proven cases of perjury?
