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The Use of Family Law Assessments as a Vehicle for Skills Development

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Lisa Young suggests that the teaching of family law, and in particular the use of detailed real-life assessments, provides a good vehicle for developing advanced legal problem-solving skills in law students.

Image courtesy of interviewee. April 10, 2024

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The speaker discusses their contribution to an upcoming book focused on teaching family law, emphasizing the importance of using practical assessments to enhance legal education. They note that students often only engage with short, simplified scenarios, which do not reflect the complexities of real-life legal cases. To address this, the speaker has developed assessments that require students to analyze complex cases, like parenting decisions and property settlements, and produce detailed judgments.

The pedagogical approach aims to move students from passive learning to active decision-making, fostering deeper understanding and retention of knowledge. They highlight the challenges inherent in family law, such as navigating discretionary judgments and applying subjective standards, which are crucial for developing advanced legal reasoning skills.

The speaker argues that these real-world assessments encourage critical thinking about ongoing tensions and biases within family law, such as gender biases and the balance between rules and discretion. They contend that their assessment method is not only effective but resistant to academic dishonesty, particularly with the rise of AI technologies that could facilitate cheating.

Overall, the speaker advocates for a broader adoption of their assessment approach in legal education, emphasizing the long-term benefits for students and their future practice as lawyers.

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Here are some articles that discuss similar themes regarding innovative teaching methods in legal education, the importance of practical assessments, and the challenges posed by academic integrity in the convideo of emerging technologies:

1. **"Innovative Assessment in Legal Education: Bridging Theory and Practice"**
This article explores various innovative assessment strategies in law schools that aim to provide students with a realistic understanding of legal practice. Emphasis is placed on the importance of simulating real-world scenarios and the corresponding development of critical thinking skills.

2. **"Teaching Law with Real-World Simulations"**
A discussion on the implementation of simulation-based assessments in law curricula, the article argues that these methods can greatly enhance student engagement and understanding by requiring them to navigate complex legal situations.

3. **"The Challenges of Teaching Family Law: Balancing Discretion and Standards"**
This video addresses the pedagogical challenges unique to family law education and offers insights into how educators can equip students to handle the nuanced judgments required in family law practice.

4. **"Academic Integrity in the Age of AI: Solutions for Legal Education"**
This article analyses the impact of AI technologies on academic integrity within legal education. It provides practical strategies for assessment design that deter academic dishonesty, paralleling the concerns raised about AI's influence on traditional testing methods.

5. **"From Passive Learning to Active Engagement: Reforming Legal Education"**
This piece discusses the shift from passive to active learning in legal education and presents evidence on how such approaches can improve student outcomes, retention of knowledge, and overall satisfaction with their educational experience.

6. **"Addressing Bias in Legal Education: A Call for Reflective Practice"**
This article highlights the importance of recognizing and addressing biases, such as gender bias within family law, as part of legal training, urging educators to incorporate discussions around these issues into their teaching strategies.

These articles emphasize the need for practical application, critical thinking, and the navigation of ethical considerations in legal education, mirroring the key points made by the speaker in the original video.

X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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Well, I was approached by the authors of a,

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an upcoming book in relation to teaching family law.

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And as someone known in my area in family law, they asked me

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to contribute something

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and I was, it was open to me really what I wanted to do.

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So I gave them a few options.

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But the one that I think we were all most keen on was this

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one on using the assessments as a, a skills exercise.

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And for me, I think that's the most unique aspect

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of the unit that I teach.

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Um, in addition to teaching family law, I teach a lot

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of legal skills,

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and, I had won a little award for,

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for the assessments and things.

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So I thought it was something useful to share

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to other university academics.

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So it's quite common in law school that

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because we are having to teach a lot of subjects

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that are just about the content of particular topics,

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that the students often get these little,

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potted scenarios that are quite short,

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and they get asked a question to test the rules.

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The, the law doesn't happen that way in practice.

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A real life scenario is someone walks in with a long story,

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it's complex, it covers different areas,

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and they want different things.

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You know, they, the outcomes they want might, might vary.

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So a real life, assessment is something

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that mirrors more what would happen in practice.

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And, and one of the key aspects of that is that,

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when people walk in,

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there usually isn't just a simple answer.

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Um, and, but you do have to commit to an answer.

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So law students get very used

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to saying in their assessments, well,

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it could be this or it could be that.

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It depends, and we don't know this.

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And, but when you get into practice, I think a lot

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of junior lawyers, are told by their

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supervising partners, I don't wanna hear it could be this,

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or it could be that I want you to nail your flag to the mask

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and tell mask and tell me

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what you actually think, will happen.

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And so I think the complexity of it, the interconnected

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with connectedness with other areas, multiple solutions,

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and the fact that you have to commit to something

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makes something a, what I'd call a real life assessment.

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Yeah, look, it's not that they're not good, they just,

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they are a different type of assessment.

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So when we talk about a theoretical assessment,

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it will generally be, something that is narrow

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and asks them to look at rules of law

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or the way law operates and to read research

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and to think about principles,

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maybe adopt some theoretical perspective of looking at it.

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And it's, it's an assessment that is really important.

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But students tend to get a lot of opportunity to do that.

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Um, they tend to get two types of assessments.

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In fact, they, they tend

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to get either these little potted stories of facts

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and what would the outcome be?

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Or they get these theoretical assessments

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where they take one small area of,

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whatever it is you are teaching,

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and they look at it in more detail.

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But from more high level principle point of view, I,

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I think they get plenty of that.

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That's why, I mean, I could do it.

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Um, but in family law, which is what I teach,

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or one of the things I teach, I feel,

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that it is such an unusual subject when students

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get to it for various reasons.

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It actually comes out of left field for them a bit

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that it's hard for them to really engage in that level of

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overview assessment or,

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or even drilling down into an area

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if they don't have some general understanding

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of family law more generally.

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Which, as I say is people think it's easy, it's not,

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and it's, you have

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to think about your problems in a different way.

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So I've just found that I find it not as useful.

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I think it's also easy, one might say in this day

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and age with ai, it's, it can also be a little bit easier

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to, for students to cheat.

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And, we're all about stopping the cheating.

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So that does influence my choices too,

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with my assessments.

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So I'm, I'm gonna give the examples that I gave in the,

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assessment in the, book chapter.

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And so family law is the,

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the big ticket items in family law are parenting decisions

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where children are gonna live and what they're gonna do

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and property settlements,

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how people are gonna divide their property between them.

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So with the parenting decision, and,

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and my students are doing it as we speak,

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handing it in tomorrow, I, I tell them

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that they're an associate to a judge who has sat

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through a trial.

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And as the judge, I write the first half of the judgment,

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which is the findings of fact.

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Now, that could be anywhere upwards of eight to 10 pages,

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which of course would be short for a judgment, but

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nonetheless is far longer than anything they've ever been

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given as an assessment before, generally speaking.

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So I go through that

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and then I ask them to, I ask them as the judge, could they

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do a draft of the second half of the judgment, so telling me

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what they think the outcome should be,

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but writing it in the way that I,

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as the judge will have to write it.

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And so that, causes them to,

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of course have to engage with the, the law in relation

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to parenting decisions.

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But it also requires them, as I said,

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to actually come to a decision.

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And I always write these assessments as a finely balanced

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as it could go one way, it could go the other way.

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I always make sure there are, and two

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or three very contentious issues,

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because most in real life, most

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Most matters do hang on two or three key issues,

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and that they're left with a Solomon's choice

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because in many parenting decisions,

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it is a Solomon's choice.

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You are trying to do something that is inherently not legal,

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decide where a child shall live, who it she'll see.

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And by putting them into this, role

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of the judicial decision maker, it, it sort of,

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you asked in relation to the pedagogical goal,

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what it does is it shifts them from sort

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of passive regurgitation of the rules

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to an active learner and an active decision maker.

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My experience is,

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I'm focusing on the parenting one at the moment,

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but my experience is that this helps embed the learning.

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They don't just learn the rules, leave the subject matter,

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forgotten it, because it is hard for them,

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because it's what we call a discretion.

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There's no right answer.

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There's a range of possible answers.

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Um, it is hard for them to decide,

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and that causes them to,

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we know from the research making things hard for students,

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it ultimately, they actually like it

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and they learn more, that they actually go away.

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Re my students tell me once they're out in a practice

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routinely that that assessment, I never forgot it.

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I agonized over it.

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We sat around in the coffee shop arguing over

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what should happen to this child.

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Unlike the librarian said, I love it.

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When your students are doing their assessment,

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they're all sitting there going, what are we gonna do?

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And, and, and that helps embed the story that the, sorry,

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embed the learning because this is, the tool is not

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for me just assessing whether they've learned the rules,

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but it's about them understanding the nature of this kind

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of decision making.

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Um, and, that, you know, I think pedagogically is,

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is really important,

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and gives them that kind of deeper understanding.

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The same is true with the problem with the property.

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One, because I, force them to do a negotiation,

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I give them a similarly difficult property settlement,

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and they'll put them into pairs.

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Uh, I don't do it every year, depends on numbers and things

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and, but I put them into pairs

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and then I force them to force 'em.

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I I assess them on, having

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to negotiate out a property settlement,

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with the information they have,

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and for a range of reasons that replicates the sort of

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tensions difficulties, the way the law operates,

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for them.

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Um, but, so these,

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these are the real things that we are doing.

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So for a family lawyer,

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real life is these parenting disputes

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and these property settle settlements.

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They're both highly discretionary,

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they're both quite different.

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Um, but these real life exercises really

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help embed the learning.

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And, and I know I've, I've assessed them,

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I've given them little surveys afterwards,

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and I know that they find it hard,

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but they find it a really good learning tool.

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Well, there are a number of aspects of having to do this

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that, are,

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what you might call transferable skills that they need to,

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have as a lawyer.

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So one of them is, it, it teaches them how

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to think about the doctrine of precedent, which is something

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that's very important in the operation of the law,

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but it operates differently in areas that are discretionary,

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like family law and administrative of law

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and sentencing from areas that are more rule-based,

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like taught contract and those sorts of things.

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So that, that's one thing they have to think about

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how the doctrine of precedent operates.

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It also helps them understand what it is

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to apply nebulous standards, you know,

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what's in the best interest of a child,

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what is a fair property settlement?

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And legislation uses these terms in a range

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of different contexts.

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So they have to think about those, how those,

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what we might call subjective standards, what it's like

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to have to apply them and,

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and what sort of, parameters there are around

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that decision making.

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Um, for example, one of the advanced skills you need

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as a, as a lawyer, I guess,

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in problem solving is understanding the extent to which

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a judge, a judge's exercise

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of discretion can be limited by,

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judicial guidelines, what other judges have said.

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Now, that's a complex area of law.

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Even the judges find it hard,

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but that's what I'd call an advanced legal problem solving

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skill to understand how, the exercise

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of discretion can be, used.

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Also, it teaches them the difference

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between evidence and opinion.

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For example, in a very sophisticated way, the evidence of a,

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an expert, on, you know, what's best for a child,

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their psychological needs versus the opinion of the judge as

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to what might be best for this child.

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Have they made their decision

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because that's what they think,

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or is there some evidence that actually,

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provides a foundation for their decision?

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So that's a really important part

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of general decision making, an advanced part of sort

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of problem solving that you need

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to think about when you're running litigation

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and, and so on.

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So there's a whole lot of

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what I would consider quite advanced skills that this,

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that this re requires

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of them over your little short scenario,

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understand a few rules.

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Tell me what the rules are apply to these simple facts.

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Family law. I, I think it, it will not surprise any listener

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to know that family law is the site of,

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the gender wars as we like to call them.

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Um, you know, the father's rights groups,

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the mother's advocates.

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And so there in the, in the operation

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of family law, there's a lot of debate over the extent

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to which family laws, favor men over women,

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women over men.

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Um, that that's probably one

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of the big fundamental tensions, that has

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played out in the reform of family law.

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And we have had a lot of reform of family law in Australia,

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and we are not alone.

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We are, I think Australia has, is considered

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to have Rolls Royce family laws to some degree.

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Um, but the, the tensions are similar in any,

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in most jurisdictions, that have similar jurisdictions

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that have, the kind of family laws that we do,

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which you find in many countries.

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So this question of, if you take an example

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of a relocation case,

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and you look at, for example, the question of

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what decision is best for a child when the parents want

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to live in different locations,

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and what are the rights of the parents

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to choose where they live?

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Are you asking in a relocation matter?

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And, and my students are grappling with this

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as I say this very question right at this very moment, are,

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are you deci saying, well, the parents get to live

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where they want, and then we choose a parent,

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or are we actually saying that the rights

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of children should always override the interests of parents

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and that therefore we can tell parents where to live?

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Um, and that that's, I, I choose that example

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because Australia's a bit of an outlier there,

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but it is a, a I think someone once called relocation cases,

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the San Andreas fault of decision making, family law,

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decision making, because it, it is incredibly difficult.

13:45.895 --> 13:49.315
And, and there will be many people who say, well,

13:49.815 --> 13:52.835
you know, mothers can just move away whenever they want.

13:52.855 --> 13:55.035
And there'll be other people who say, well,

13:55.055 --> 13:57.835
the current laws actually father, favor the

13:58.635 --> 13:59.795
noncustodial parent

13:59.795 --> 14:02.115
because they force the other parent to stay there.

14:02.135 --> 14:03.395
So this is a, when,

14:03.665 --> 14:05.835
when you think about the reform of family law.

14:05.855 --> 14:08.555
So there's sort of underlying tensions in applying the best

14:08.795 --> 14:12.035
interest principle, this notion of gender wars, this notion

14:12.035 --> 14:16.355
of favoritism, you know, bias, absolutely crucial.

14:17.255 --> 14:19.595
And so a question like this really makes

14:19.625 --> 14:20.715
them think about it.

14:21.495 --> 14:23.515
The same is true. To give another example,

14:23.775 --> 14:28.045
the same is true in, property matters.

14:28.625 --> 14:32.525
So one of the big debates in family law property is rules

14:32.525 --> 14:33.645
versus discretion.

14:34.075 --> 14:35.365
Australia has a system

14:35.365 --> 14:37.645
that is very discretionary, very few rules.

14:38.025 --> 14:42.165
So the same is true in discretionary decision making,

14:42.185 --> 14:43.965
of, in relation to property law.

14:44.345 --> 14:47.725
So the big debate in property law is about whether we have

14:47.725 --> 14:49.005
rules versus discretion.

14:49.555 --> 14:50.845
Australia has a very

14:51.035 --> 14:53.245
Discretionary system,

14:53.415 --> 14:56.125
where you decide what's fair based on a whole lot of things,

14:56.225 --> 15:00.565
and other countries are moving towards having more,

15:01.145 --> 15:03.405
concrete kind of rules about

15:03.405 --> 15:04.565
how you treat different things.

15:04.705 --> 15:07.765
How do you treat inheritances, how do you treat what

15:08.885 --> 15:11.605
property was brought into a relationship,

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compensation payments, lottery wins,

15:13.985 --> 15:15.005
all these sorts of things.

15:15.945 --> 15:19.725
And so there has been over recent years a lot

15:19.725 --> 15:22.645
of discussion about, what are the advantages

15:22.645 --> 15:26.925
or disadvantages of the two, types of approach.

15:27.665 --> 15:31.925
So when you ask a student to negotiate out a

15:32.525 --> 15:36.925
property settlement, and they're having to operate in

15:36.925 --> 15:38.965
that highly discretionary mode,

15:38.965 --> 15:42.365
and we've talked in class about the nature of the rules,

15:42.745 --> 15:45.965
it gives them an opportunity to look at the overall outcome

15:45.965 --> 15:47.405
that they've decided

15:47.545 --> 15:51.685
and think about whether they feel in fact, this,

15:52.035 --> 15:54.485
this is sort of what some people think is a very nebulous

15:54.635 --> 15:56.365
sort of way of resolving it.

15:56.365 --> 15:59.325
It's highly discretionary way is in fact does come up

15:59.325 --> 16:01.445
with a fair outcome if, and,

16:01.445 --> 16:04.965
and, you know, one of the tensions in that regard, a lot

16:04.965 --> 16:07.085
of the discussion is about,

16:07.085 --> 16:11.085
whether rules-based systems disadvantage homemakers

16:11.225 --> 16:13.685
and caregivers, if you have a rule

16:13.685 --> 16:16.925
that's 50 50 on property on separation,

16:16.955 --> 16:18.005
does, is that fair?

16:18.065 --> 16:19.805
Or in fact, does that feel unfair?

16:19.805 --> 16:22.405
Because losing your earning capacity is the biggest

16:22.515 --> 16:24.045
financial loss you'll ever have.

16:24.905 --> 16:29.685
Um, and so you're able to interrogate that with the students

16:30.105 --> 16:32.805
and think about that because they then look at a real person

16:33.115 --> 16:36.125
that they've been asked to negotiate a settlement for, see

16:36.125 --> 16:38.365
how this operates and really assess at the end of it.

16:38.365 --> 16:40.125
And we, we do some processes

16:40.125 --> 16:42.325
after the assessment to talk about, you know,

16:42.505 --> 16:45.805
how fair they thought it all was given, the way

16:45.805 --> 16:47.045
that our system operates.

16:47.385 --> 16:50.245
And we sort of then talk about some other systems of law

16:50.245 --> 16:53.605
where they have, a community of property

16:53.605 --> 16:55.085
and things where it's more rule-based.

16:55.265 --> 16:59.805
So yeah, they, they do find it, it, it enables them

16:59.865 --> 17:03.165
to think critically about the big, big ticket reform items

17:03.235 --> 17:05.245
that we are discussing in family law.

17:05.515 --> 17:09.645
Yeah, look, I'm, I'm a, a doctrinal scholar,

17:09.985 --> 17:11.085
by which I mean, I tend

17:11.085 --> 17:13.325
to write about the law rather than write about teaching.

17:13.325 --> 17:15.605
So it was kind of an interesting exercise for me to go

17:15.785 --> 17:17.445
to be asked to write this chapter,

17:17.625 --> 17:18.845
and I had to think about it.

17:19.625 --> 17:21.885
Um, although I put a lot of effort in

17:21.885 --> 17:24.605
and thought into my teaching, it's not somewhere I research.

17:25.065 --> 17:29.685
Um, you know, for me, I think the takeaway is that,

17:30.365 --> 17:32.645
I find it very successful for students,

17:33.145 --> 17:34.925
and I do a lot of skills-based teaching,

17:35.305 --> 17:38.205
but I guess if anything it's, it's, I mean,

17:38.365 --> 17:40.725
the teaching scholars will, will comment on

17:40.945 --> 17:43.285
how you would assess how you would evaluate this.

17:43.945 --> 17:46.925
Um, I, you know, I would say in the doing, I've seen the,

17:46.985 --> 17:48.285
the benefits and I,

17:48.625 --> 17:51.405
and the students regularly tell me this once they've,

17:51.405 --> 17:53.085
and I see them all the time once they're in practice,

17:53.085 --> 17:54.085
it's a small community.

17:54.665 --> 17:59.525
But I think the, the takeaways maybe in the current,

17:59.775 --> 18:02.005
times are that this is something

18:02.005 --> 18:03.805
that we should all be thinking about more anyway.

18:03.825 --> 18:05.645
We can still do theoretical assessments,

18:05.745 --> 18:09.765
but I think there are, I think there is a tendency to, to

18:09.865 --> 18:14.405
to easily fall into, these sort of very

18:15.125 --> 18:17.765
standard forms of, as I said, small scenarios

18:18.225 --> 18:20.685
and asking them just to, to repeat the rules.

18:21.405 --> 18:24.565
I think that, that we are gonna have to rethink that anyway

18:24.835 --> 18:26.085
because of ai.

18:26.445 --> 18:28.605
I mean, AI is extremely significant.

18:28.705 --> 18:29.885
Uh, many people have said

18:29.885 --> 18:32.165
that it's probably more significant in our, in,

18:32.305 --> 18:36.805
in legal education than in some other areas of education

18:36.805 --> 18:40.645
because of the nature of, the what we are teaching

18:40.645 --> 18:42.725
and the way they do, we do the assessments.

18:43.345 --> 18:47.445
Um, but I i, I would hope I guess that,

18:47.905 --> 18:48.965
in writing the chapter

18:49.745 --> 18:53.405
and, being sort of an advocate for this kind of,

18:53.405 --> 18:56.685
assessment approach as one assessment approach, that,

18:56.875 --> 18:59.445
that it might be adopted a little more widely within

19:00.105 --> 19:04.085
law schools because there is no doubt that there is no way

19:04.745 --> 19:08.365
any chat GPT is going to take my eight page assessment

19:09.225 --> 19:13.405
and write an answer that, has any meaning or,

19:13.425 --> 19:14.765
or any sense for my students.

19:14.865 --> 19:17.645
Now, I say that, who knows, you know, down the track

19:17.645 --> 19:19.685
what they'll be able to get chat GPT to do.

19:20.305 --> 19:21.845
But, and,

19:21.945 --> 19:24.245
and I don't, obviously I don't think that's the only reason,

19:24.265 --> 19:25.765
but maybe it's a slight encouragement

19:25.765 --> 19:27.565
because the reality, one of the, one

19:27.565 --> 19:29.285
of the issues is it does take some time

19:29.305 --> 19:30.685
to write these assessments,

19:31.265 --> 19:34.205
but the answer for anyone out there who's thinking about

19:34.215 --> 19:37.405
doing this, this mode of assessment, this type

19:37.405 --> 19:40.365
of assessment, is that once you build up a bank of them,

19:40.575 --> 19:42.725
which I have over the years,

19:42.835 --> 19:44.685
then I can recycle them very easily

19:44.685 --> 19:46.325
because students are only with ever

19:46.325 --> 19:47.405
with you for a few years.

19:47.945 --> 19:49.965
Um, and laws change and so on.

19:50.065 --> 19:53.205
So, there's, there's a bit of input that's required,

19:53.665 --> 19:56.845
but I think the benefits to the students are significant.

19:57.305 --> 19:58.605
And I think for us as teachers,

19:58.685 --> 20:00.965
they're gonna avoid those problems with AI that we're,

20:01.135 --> 20:03.085
we're all gonna face in the coming years.

00:00 - Well, I was approached by the authors of a, an upcoming book in relation to teaching family law. And as someone known in my area in family law, they asked me to contribute something and I was, it was open to me really what I wanted to do. So I gave them a few options.

00:20 - But the one that I think we were all most keen on was this one on using the assessments as a, a skills exercise. And for me, I think that's the most unique aspect of the unit that I teach. in addition to teaching family law, I teach a lot of legal skills, and, I had won a little award for, for the assessments and things. So I thought it was something useful to share to other university academics.

00:48 - So it's quite common in law school that because we are having to teach a lot of subjects that are just about the content of particular topics, that the students often get these little, potted scenarios that are quite short, and they get asked a question to test the rules. The, the law doesn't happen that way in practice. A real life scenario is someone walks in with a long story, it's complex, it covers different areas, and they want different things.

01:17 - You know, they, the outcomes they want might, might vary. So a real life, assessment is something that mirrors more what would happen in practice. And, and one of the key aspects of that is that, when people walk in, there usually isn't just a simple answer. and, but you do have to commit to an answer. So law students get very used to saying in their assessments, well, it could be this or it could be that.

01:44 - It depends, and we don't know this. And, but when you get into practice, I think a lot of junior lawyers, are told by their supervising partners, I don't wanna hear it could be this, or it could be that I want you to nail your flag to the mask and tell mask and tell me what you actually think, will happen. And so I think the complexity of it, the interconnected with connectedness with other areas, multiple solutions, and the fact that you have to commit to something

02:13 - makes something a, what I'd call a real life assessment. Yeah, look, it's not that they're not good, they just, they are a different type of assessment. So when we talk about a theoretical assessment, it will generally be, something that is narrow and asks them to look at rules of law or the way law operates and to read research and to think about principles, maybe adopt some theoretical perspective of looking at it. And it's, it's an assessment that is really important.

02:50 - But students tend to get a lot of opportunity to do that. they tend to get two types of assessments. In fact, they, they tend to get either these little potted stories of facts and what would the outcome be? Or they get these theoretical assessments where they take one small area of, whatever it is you are teaching, and they look at it in more detail. But from more high level principle point of view, I,

03:16 - I think they get plenty of that. That's why, I mean, I could do it. but in family law, which is what I teach, or one of the things I teach, I feel, that it is such an unusual subject when students get to it for various reasons. It actually comes out of left field for them a bit that it's hard for them to really engage in that level of overview assessment or, or even drilling down into an area

03:41 - if they don't have some general understanding of family law more generally. Which, as I say is people think it's easy, it's not, and it's, you have to think about your problems in a different way. So I've just found that I find it not as useful. I think it's also easy, one might say in this day and age with ai, it's, it can also be a little bit easier to, for students to cheat. And, we're all about stopping the cheating.

04:10 - So that does influence my choices too, with my assessments. So I'm, I'm gonna give the examples that I gave in the, assessment in the, book chapter. And so family law is the, the big ticket items in family law are parenting decisions where children are gonna live and what they're gonna do and property settlements, how people are gonna divide their property between them. So with the parenting decision, and,

04:38 - and my students are doing it as we speak, handing it in tomorrow, I, I tell them that they're an associate to a judge who has sat through a trial. And as the judge, I write the first half of the judgment, which is the findings of fact. Now, that could be anywhere upwards of eight to 10 pages, which of course would be short for a judgment, but nonetheless is far longer than anything they've ever been given as an assessment before, generally speaking.

05:05 - So I go through that and then I ask them to, I ask them as the judge, could they do a draft of the second half of the judgment, so telling me what they think the outcome should be, but writing it in the way that I, as the judge will have to write it. And so that, causes them to, of course have to engage with the, the law in relation to parenting decisions. But it also requires them, as I said,

05:39 - to actually come to a decision. And I always write these assessments as a finely balanced as it could go one way, it could go the other way. I always make sure there are, and two or three very contentious issues, because most in real life, most Most matters do hang on two or three key issues, and that they're left with a Solomon's choice because in many parenting decisions, it is a Solomon's choice.

06:08 - You are trying to do something that is inherently not legal, decide where a child shall live, who it she'll see. And by putting them into this, role of the judicial decision maker, it, it sort of, you asked in relation to the pedagogical goal, what it does is it shifts them from sort of passive regurgitation of the rules to an active learner and an active decision maker. My experience is, I'm focusing on the parenting one at the moment,

06:43 - but my experience is that this helps embed the learning. They don't just learn the rules, leave the subject matter, forgotten it, because it is hard for them, because it's what we call a discretion. There's no right answer. There's a range of possible answers. it is hard for them to decide, and that causes them to, we know from the research making things hard for students, it ultimately, they actually like it

07:11 - and they learn more, that they actually go away. Re my students tell me once they're out in a practice routinely that that assessment, I never forgot it. I agonized over it. We sat around in the coffee shop arguing over what should happen to this child. Unlike the librarian said, I love it. When your students are doing their assessment, they're all sitting there going, what are we gonna do? And, and, and that helps embed the story that the, sorry,

07:38 - embed the learning because this is, the tool is not for me just assessing whether they've learned the rules, but it's about them understanding the nature of this kind of decision making. and, that, you know, I think pedagogically is, is really important, and gives them that kind of deeper understanding. The same is true with the problem with the property. One, because I, force them to do a negotiation, I give them a similarly difficult property settlement,

08:13 - and they'll put them into pairs. I don't do it every year, depends on numbers and things and, but I put them into pairs and then I force them to force 'em. I I assess them on, having to negotiate out a property settlement, with the information they have, and for a range of reasons that replicates the sort of tensions difficulties, the way the law operates, for them.

08:39 - but, so these, these are the real things that we are doing. So for a family lawyer, real life is these parenting disputes and these property settle settlements. They're both highly discretionary, they're both quite different. but these real life exercises really help embed the learning. And, and I know I've, I've assessed them,

09:01 - I've given them little surveys afterwards, and I know that they find it hard, but they find it a really good learning tool. Well, there are a number of aspects of having to do this that, are, what you might call transferable skills that they need to, have as a lawyer. So one of them is, it, it teaches them how to think about the doctrine of precedent, which is something that's very important in the operation of the law,

09:28 - but it operates differently in areas that are discretionary, like family law and administrative of law and sentencing from areas that are more rule-based, like taught contract and those sorts of things. So that, that's one thing they have to think about how the doctrine of precedent operates. It also helps them understand what it is to apply nebulous standards, you know, what's in the best interest of a child, what is a fair property settlement?

09:54 - And legislation uses these terms in a range of different contexts. So they have to think about those, how those, what we might call subjective standards, what it's like to have to apply them and, and what sort of, parameters there are around that decision making. for example, one of the advanced skills you need as a, as a lawyer, I guess, in problem solving is understanding the extent to which

10:23 - a judge, a judge's exercise of discretion can be limited by, judicial guidelines, what other judges have said. Now, that's a complex area of law. Even the judges find it hard, but that's what I'd call an advanced legal problem solving skill to understand how, the exercise of discretion can be, used. Also, it teaches them the difference between evidence and opinion.

10:50 - For example, in a very sophisticated way, the evidence of a, an expert, on, you know, what's best for a child, their psychological needs versus the opinion of the judge as to what might be best for this child. Have they made their decision because that's what they think, or is there some evidence that actually, provides a foundation for their decision? So that's a really important part of general decision making, an advanced part of sort

11:21 - of problem solving that you need to think about when you're running litigation and, and so on. So there's a whole lot of what I would consider quite advanced skills that this, that this re requires of them over your little short scenario, understand a few rules. Tell me what the rules are apply to these simple facts. Family law. I, I think it, it will not surprise any listener

11:42 - to know that family law is the site of, the gender wars as we like to call them. you know, the father's rights groups, the mother's advocates. And so there in the, in the operation of family law, there's a lot of debate over the extent to which family laws, favor men over women, women over men. that that's probably one of the big fundamental tensions, that has

12:14 - played out in the reform of family law. And we have had a lot of reform of family law in Australia, and we are not alone. We are, I think Australia has, is considered to have Rolls Royce family laws to some degree. but the, the tensions are similar in any, in most jurisdictions, that have similar jurisdictions that have, the kind of family laws that we do, which you find in many countries. So this question of, if you take an example

12:43 - of a relocation case, and you look at, for example, the question of what decision is best for a child when the parents want to live in different locations, and what are the rights of the parents to choose where they live? Are you asking in a relocation matter? And, and my students are grappling with this as I say this very question right at this very moment, are, are you deci saying, well, the parents get to live

13:13 - where they want, and then we choose a parent, or are we actually saying that the rights of children should always override the interests of parents and that therefore we can tell parents where to live? and that that's, I, I choose that example because Australia's a bit of an outlier there, but it is a, a I think someone once called relocation cases, the San Andreas fault of decision making, family law, decision making, because it, it is incredibly difficult. And, and there will be many people who say, well,

13:49 - you know, mothers can just move away whenever they want. And there'll be other people who say, well, the current laws actually father, favor the noncustodial parent because they force the other parent to stay there. So this is a, when, when you think about the reform of family law. So there's sort of underlying tensions in applying the best interest principle, this notion of gender wars, this notion of favoritism, you know, bias, absolutely crucial.

14:17 - And so a question like this really makes them think about it. The same is true. To give another example, the same is true in, property matters. So one of the big debates in family law property is rules versus discretion. Australia has a system that is very discretionary, very few rules. So the same is true in discretionary decision making, of, in relation to property law.

14:44 - So the big debate in property law is about whether we have rules versus discretion. Australia has a very Discretionary system, where you decide what's fair based on a whole lot of things, and other countries are moving towards having more, concrete kind of rules about how you treat different things. How do you treat inheritances, how do you treat what property was brought into a relationship,

15:11 - compensation payments, lottery wins, all these sorts of things. And so there has been over recent years a lot of discussion about, what are the advantages or disadvantages of the two, types of approach. So when you ask a student to negotiate out a property settlement, and they're having to operate in that highly discretionary mode, and we've talked in class about the nature of the rules, it gives them an opportunity to look at the overall outcome

15:45 - that they've decided and think about whether they feel in fact, this, this is sort of what some people think is a very nebulous sort of way of resolving it. It's highly discretionary way is in fact does come up with a fair outcome if, and, and, you know, one of the tensions in that regard, a lot of the discussion is about, whether rules-based systems disadvantage homemakers and caregivers, if you have a rule

16:13 - that's 50 50 on property on separation, does, is that fair? Or in fact, does that feel unfair? Because losing your earning capacity is the biggest financial loss you'll ever have. and so you're able to interrogate that with the students and think about that because they then look at a real person that they've been asked to negotiate a settlement for, see how this operates and really assess at the end of it. And we, we do some processes

16:40 - after the assessment to talk about, you know, how fair they thought it all was given, the way that our system operates. And we sort of then talk about some other systems of law where they have, a community of property and things where it's more rule-based. So yeah, they, they do find it, it, it enables them to think critically about the big, big ticket reform items that we are discussing in family law. Yeah, look, I'm, I'm a, a doctrinal scholar,

17:09 - by which I mean, I tend to write about the law rather than write about teaching. So it was kind of an interesting exercise for me to go to be asked to write this chapter, and I had to think about it. although I put a lot of effort in and thought into my teaching, it's not somewhere I research. you know, for me, I think the takeaway is that, I find it very successful for students, and I do a lot of skills-based teaching,

17:35 - but I guess if anything it's, it's, I mean, the teaching scholars will, will comment on how you would assess how you would evaluate this. I, you know, I would say in the doing, I've seen the, the benefits and I, and the students regularly tell me this once they've, and I see them all the time once they're in practice, it's a small community. But I think the, the takeaways maybe in the current, times are that this is something

18:02 - that we should all be thinking about more anyway. We can still do theoretical assessments, but I think there are, I think there is a tendency to, to to easily fall into, these sort of very standard forms of, as I said, small scenarios and asking them just to, to repeat the rules. I think that, that we are gonna have to rethink that anyway because of ai. I mean, AI is extremely significant. many people have said

18:29 - that it's probably more significant in our, in, in legal education than in some other areas of education because of the nature of, the what we are teaching and the way they do, we do the assessments. but I i, I would hope I guess that, in writing the chapter and, being sort of an advocate for this kind of, assessment approach as one assessment approach, that, that it might be adopted a little more widely within law schools because there is no doubt that there is no way

19:04 - any chat GPT is going to take my eight page assessment and write an answer that, has any meaning or, or any sense for my students. Now, I say that, who knows, you know, down the track what they'll be able to get chat GPT to do. But, and, and I don't, obviously I don't think that's the only reason, but maybe it's a slight encouragement because the reality, one of the, one of the issues is it does take some time

19:29 - to write these assessments, but the answer for anyone out there who's thinking about doing this, this mode of assessment, this type of assessment, is that once you build up a bank of them, which I have over the years, then I can recycle them very easily because students are only with ever with you for a few years. and laws change and so on. So, there's, there's a bit of input that's required,

19:53 - but I think the benefits to the students are significant. And I think for us as teachers, they're gonna avoid those problems with AI that we're, we're all gonna face in the coming years.

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