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Groundbreaking research by Monash dean of Law Professor Stephen Parker aims to formulate a code of best practice for family lawyers. 

By Fiona Perry

In the emotion-charged world of family litigation, the end – the will to win – often justifies the means – the tactics a lawyer will use to win a case.

While that is completely normal practice under our adversarial legal system, there is a point at which tactical behaviour may be counterproductive to the interests of parties involved in family litigation, says Monash dean of Law Professor Stephen Parker.

And it is those tactics, and their alternative, cooperative arrangements between litigating parties, that is the focus of a major ARC research project entitled ‘Tactics, ethics and justice in the practice of family law’ . 

The project is being undertaken by Professor Parker, in conjunction with Professor John Dewar of Griffith University, and aims to establish a code of best practice in family law.

The research team will interview family lawyers, barristers and judges in Melbourne and Sydney to ascertain current practice in family law. 

The tactics found to be commonly used in family law will be evaluated with reference to relevant principles of legal ethics, and a set of protocols will be formulated.

Barristers and solicitors will have the opportunity to comment on the protocols before they are finalised.

Professor Parker said the aim of the code of best practice was to facilitate cooperative arrangements that renounce the use of some tactics. 

"Cooperative arrangements potentially lead to better net outcomes for litigants and third parties, such as children, and it is lawyers who are best placed to facilitate them. 

"Currently, however, neither formal codes of legal ethics nor procedural rules lead reliably to cooperative arrangements. 

"The code of best practice we are proposing will be one that solicitors can sign up to, leading to win-win situations all round." 

The project follows a 1997 review by the Australian Law Reform Commission into the adversarial system of litigation in family law proceedings.

In the review, the commission suggested the adversarial nature of family law proceedings and tactical behaviour by family lawyers may be responsible for excessive costs and delays in family litigation, over-servicing, and an unduly confrontational approach in dealing with disputes, causing unnecessary suffering to third parties, particularly children.

These are problems that project researcher and family law specialist Ms Lisa Jarvis has experienced first-hand."The source of these problems is partly due to the nature of the client–lawyer relationship under the adversarial system," she said.

"Arguably, lawyers' tactical behaviour is quite legitimate. Under the adversarial system you're the champion of your client and do all you can tactically, within legal bounds, to get a good result."

Professor Parker said some tactical conduct was not instigated by lawyers themselves, but insisted on by clients.

"Under the adversarial system, lawyers must act on clients' instructions. Part of our research wil focus on the basis for lawyers to refuse to engage in certain tactics that are not clearly unethical or unlawful, on a client's behalf" he said.

Professor Stephen Parker and Ms Lisa Jarvis.

"This project aims to introduce a standard of behaviour, which, when adhered to by two parties, will bring about much better results for everyone involved."

He said the issue raised interesting questions about the concept of 'ethics' in family law.

"In the pilot study, where seven Brisbane legal practitioners were interviewed, the meaning of 'ethics' was considered problematic.

"A barrister of 20 years' experience in family law said that a lot hinged on the definition of 'ethical' and that he had not yet worked out what was ethical, as opposed to unethical practice.

"The challenge of our research will be to establish a basis for the evaluation of these tactics."

The Monash Law faculty is planning a regular schedule of alumni activities. For more details, contact Ms Pamela Lister on (03) 9905 3373 or email p.lister@law.monash.edu.au.