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Address by Mr Justice Mostyn to the Hong Kong Family Law Association

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An analysis of the exercise of judicial discretion in the Family Law sphere

Address by Mr Justice Mostyn to the Hong Kong Family Law Association

British Consulate-General, Hong Kong

25 April 2019


“Discretion. It is a word embedded in the family lawyer’s mental lexicon. What does it mean? The instinctive response of many, perhaps most, is that it means that a judge has a virtually limitless freedom to do what he or she subjectively thinks is fair. Consider the famous words of Lord Justice Ormrod in Martin v Martin [1978] Fam 12:

“It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the Act of 1973, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion.”

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