The changes were not accepted with good heart by the court; and this reluctance to accept reform was no more clearly evidenced than at their great tribal gathering in 2006, the National Family Law Conference held in Perth.
The retiring Justice Richard Chisholm, who had done much to set the tone of the court, showed how little regret for past practice was in play when he declared of the reforms:
“The ultimate goal has to remain the same: to do what’s best for kids. So, we might see a lot of change in the way a case is presented, but the outcome should be the same as under old system.”
On the final day of the conference, the Hon Richard Chisholm started the morning session with a song about the Family Law Act amendments.He sang with gusto to the tune of “On Top of Old Smokey” (better known as the “I Lost My Poor Meatball” song):
“It seems rather blokey the men won the fights
but now they all tell us
it’s about childrens’ rights …
We struggle to read it,
we mutter and moan,
by the time that we’ve read it,
the kids have left home …
I studied one section, got it into my head,
but it only told me what another section said…”
The ditty caused some offence; and indeed it is impossible to imagine a family court judge singing a song that ridiculed mothers without causing immense outrage – much less applause, as in this case.
Legal News Service CCH went on to report that Chisolm said it was the job of the court and practitioners to apply the law and not be guessing what government wanted: “We know quite a bit of what the government intended, but then we have the legislation”.
No truer words, of course, as critics had pointed out. Male litigants who had appeared before him were often critical; but a lifetime in the shrouds of importance did not lend to humility. The power play between the various branches of government was never more clearly displayed.
Chisholm cautioned practitioners to be careful about making the intention of government and the law the same thing.
“At times of crises there’s a lot to be said about orthodoxy; it’s our job to administer the law.”
(Reference: 27 October 2006: Hot potatoes, obesity and politics in family law reform. By Melinda Chiew, CCH senior writer.)
Chisholm went on to say that the recent epidemic of obesity seems to have extended to the Family Law Act before discussing what he saw as problematic parts of the Act. His Honour looked at the revised s 60B, which was more explicit than the old provision.His Honour explained its workings thus: Section 60B divides considerations into two categories: primary considerations and additional considerations. Primary considerations are based on the premise that there’s a benefit to children of having a meaningful relationship with both parents. But this assumption must also be balanced with the need to protect children from violence and abuse. These two factors are known as the “new twin pillars of the law”.
Additional considerations cover everything else (eg. views of the child, ability for adequate parenting, etc).His Honour said that it was the job of the court and practitioners to apply the law and not be guessing what government wanted.
“We know quite a bit of what the government intended, but then we have the legislation”. He cautioned that practitioners must be careful about making the intention of government (the politics) and the law the same thing. “At times of crises there’s a lot to be said about orthodoxy; it’s our job to administer the law.”
His Honour proposed that everything that was relevant to additional considerations was also relevant to primary considerations. He suggested that practitioners “take the factual disputes separately, then come back to the legislation to see how it fits together”, rather than take one legal category then look at another one, which “leads to endless confusion”. Practitioners should get the facts right first, he said, then work through the legislation referring back to the facts.In the final analysis, he said, “you can make sense of it. The ultimate goal has to remain the same: to do what’s best for kids. So, we might see a lot of change in the way a case is presented, but the outcome should be the same as under old system.”
Professor Patrick Parkinson considered that the primary considerations set the broad direction to drive towards, while the additional considerations set the route (the way orders are framed). His view of the reforms was more optimistic, and he commented that: “we have an alignment between law and social science that we’ve never had before, confusing as it is”.He referred to the research findings – expounded by Dr Joan B Kelly during the Family Law Conference – that there had been many commonly held misconceptions about what was in the best interests of children that had now been challenged by research findings.
Departing from Prof Chisholm’s opinion, he insisted that the primary considerations were not just a matter of politics, but were enacted in the light of the facts about post-separation effects on children. He urged the legal profession to consider primary considerations, not because Parliament said so, but because social science studies had shown that it was important for the healthy psychological adjustment of children of divorce.—
A roundup of articles on the conference are available through CCH:
No light house-keeping: family law renovations – a round-up of the State of the Nation addresses
Family Court will make more unpopular decisions: Chief Judge – State of the Nation address by Chief Justice Diana Bryant
Chief Federal Magistrate names elephant in the room – address by Chief Federal Magistrate John Pascoe
Combined registry for family law – progress at a price – joint address of Richard Foster PSM and John Mathieson, chief executives of the Family Court and Federal Magistrates Court
Peter Nygh, family law conflicts and same-sex marriage – Peter Nygh Memorial Lecture by Justice Michael Kirby AC
Do family lawyers have a future? – editorial on the conference debate
What you might not know about children and divorce – Dr Joan B Kelly on results of post-separation parenting research
Family Law Reforms – 12th National Family Law Conference – 23 October 2006
Papers and reports related to Australian family law and the Family Court of AustraliaAuthor:
The Honourable Chief Justice Diana BryantDownload PDF Versionhttp://www.familycourt.gov.au/presence/resources/file/eb001347dd02130/CJ_speech_Oct_2006.pdfSTATE OF THE NATION
Head of the Family Court of Australia Chief Justice Diana Bryant National Family fired a warning shot across the government’s bows.
“It is useful when considering the implementation of legislation to remind ourselves of the independence of the Court from the Executive and the Parliament. In doing so I do not suggest for a moment that the Court is not required to implement the law in a real and substantive way and in a manner in which the Parliament intended it to operate. That I hope is gainsaid.But it is useful to consider what that independence means, because the Court has a separate and distinct role from that of the Parliament and the Government.”
Her speach is worth noting and quoting in fair degree as a good reflection of the court’s position.
She began by noting that the Family Court of Australia had celebrated 30 years of service, having commenced operations on 5 January 1976.
“In that period there has been, on my calculation, sixty-nine Acts of the Commonwealth Parliament of Australia which have amended the Family Law Act 1975 (Cth). Amongst the most recent, and possibly most significant to the principles which guide the resolution of parenting disputes and the means by which disputes are resolved, has been the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The Act flowed from “Every Picture Tells a Story”, the December 2003 Report of the House of Representative Standing Committee on Family and Community Affairs, which had only recently been released when I last addressed this Conference in September 2004.
At that time, the government had also published its framework statement for the reform of the Family Law System. In that statement the government identified four primary areas for reform:-1. A greater emphasis on shared parental responsibility;
2. The establishment of a network of Family Relationship Centres;
3. The creation of a combined `Family Law Registry’ for the Family Court of Australia and the Federal Magistrates Court; and
4. A less adversarial approach to children’s cases.New heads of jurisdictions inevitably come with ideas for change. Mine were shaped somewhat by that framework.
Bryant aid she would report on “what has been achieved in those two years using the four areas of reform identified by the government. She recorded that a greater emphasis on shared parental responsibility was addressed by the Family Law Amendment (Shared Parental Responsibility) Act 2006 which came into effect on 1 July 2006.
She said it was too early for any discernable trends in decision making or jurisprudence, but at the end of October 2006 the Full Court would hear some appeals arising from interim hearings and the question of whether Cowling in its present form survives the amendments.
Indeed the sad forensic examination of some of these appeals, including the well known Goode and Goode case, showed the weakness in the original legislation.
Bryant went on to say:
“The Government’s aim is to try to bring about social change, by designing a system which it is hoped will change outcomes over a period of time for a large number of the community, both those who do not seek the assistance of the court and those who do.The Court has an entirely different role.
“Its role is to resolve the disputes that come before it and where they proceed to a hearing, to determine each individual case according to the circumstances of that particular case, in the context of the Family Law Act, and in the best interests of the children in that family. There is no question of what occurs in other households or in other families when the factors in the Act are being applied on an individual basis in an individual family. Of course, the Court does not apply the law, much of which is about value judgments, in isolation. It does so in a social context.
Much of the criticism of the Court in the past has been, in my view, because of a failure to comprehend that the discretionary nature of the considerations of what is in the best interests of an individual child in an individual family, requires making judgments about that child in that family, not all children in all families.But courts are an integral part of the arms of Government.
The hardest and most unpopular of decisions that have to be made are, and will continue to be made by the courts.Of course, the government should expect that the court will apply the law in accordance with and the spirit of the intention of government.
“But it is important to make these points at this time because the more successful the government’s initiatives are in keeping the majority of separating couples out of court, then the more difficult the cases that will end up in litigation in the courts. That is already the case and will be even more so in the future.This is particularly so in the Family Court when compared with the Federal Magistrates Court.
“It is those very cases that will be dealt with in the Family Court – cases of violence, abuse and entrenched conflict – which will by their nature be less likely to lead to the cooperative parenting that the government wants parties to have and the kind of orders that would support them. The court accepts its role and the unpopularity that that role will continue to engender, but judging is not about popularity.I hope only for respect for the work we do, an understanding of its difficulty, and the support of government for the difficult decisions that judges make every day.”
Bryant went on to discuss the establishment of the network of Family Relationship Centres. On 3 July 2006, fifteen Family Relationship Centres (“FRCs”) commenced operation.
The full compliment of sixty-five centres was aimed for 2008.
Her Honor was not fully convinced:
“To the extent that it is anticipated the Family Relationship Centres will help more separating families put aside their differences and reach agreement in the children’s interests, the Government is to be applauded. Whether it is achievable in greater numbers remains to be seen but I am optimistic that attitudes can be changed with the right education, support and encouragement.Let me, however, add a word of caution.
“Any genuine change of this kind in my view will inevitably take years to be fully realised. In my own experience in practice, it took about ten years after the passing of the Family Law Act for the general community to accept that no fault divorce was appropriate.
“Even today, there are those who continue to hold the view that adults should not be permitted to leave a marital relationship, absent good cause, without some sanctions but these voices are now few and society has moved on. Indeed the fact that there are many people who do not marry at all has probably assisted in this process.It is important therefore in my view for the government to be patient about its reforms.
“Genuine reform takes time and it would be difficult indeed if these initiatives which promise much were to be seen as failures because they were evaluated in too short a time frame. Commitment is required to let the winds of change blow for sufficiently long to have a lasting impact on the climate.”
She then went on to discuss the complexities of a combined ‘Family Law Registry’ for the Family Court of Australia and the Federal Magistrates Court and the continuing curious relationship between the two institutions; with resources being drained one to the other; in a different undermining of the family court. Bryant called on the goverment to define the future of the Family Court, or whether its future lay as an appeals court.
“There is an ongoing debate and the need for some resolution of exactly what the more complex work should be. To some extent this depends upon the relative sizes of the Courts…
“Planning for the future is not easy when the Courts virtually have concurrent jurisdiction and it is not known how large each of them will be. I have previously said that the Courts are entitled to expect some leadership from the Government in this area and I do ask that the Attorney-General gives some fairly urgent consideration to consulting through whatever process he might think appropriate to provide a blueprint for the future of the Courts over the next five years.
“The Family Court has already reduced in size since the commencement of the Federal Magistrates Court. The question of how large or how small it should ultimately be is one that really needs to be addressed. It is difficult to plan for without knowing what you are planning for.There are many considerations. At the moment most of the work done by the Federal Magistrates Court is limited to those matters which do not take longer than two days. If the size of the Family Court reduces considerably and I use Adelaide as an example, there may have to be some reassessment of whether the Federal Magistrates Court should be doing cases longer than two days. I doubt that the Family Court Judges could reasonably get through the workload of all those cases over two days with only three Judges. This in turn requires a fundamental reconsideration of what kind of work the Federal Magistrates court is to do. Is it simply to do those cases which do not take longer than two days leaving all of the rest to the Family Court? If so I suspect that there would not be much further capacity for diminishing the number of Family Court Judges.
However, if on the other hand if it is to do longer cases then on what basis are they to be differentiated?I pose the question, for example, of whether it is appropriate for a superior Court to be hearing long, fact intensive, but jurisprudentially unimportant cases with self represented litigants or whether that is more appropriate with the lower level Court.These are not easy matters to address but they do need to be addressed and the Courts should not be left to sort these planning issues out alone.
Whatever the government plans for the future of the Family Court is unquestionably its prerogative. There are models to consider. The High Court in England is a useful model in my view. It is a superior Court which mainly hears appeals but also the most complex work. But it is time for an indication by the government of what is the longer term plan for the Court and if there is none, to conceive a blueprint. The failure to do so is bad for morale within the court and could affect recruitment of potential judges.”
The court’s pilot program for promoting less adversarial approaches had not convinced critics who claimed it gave too much power to judges.
But Bryant was enthusiastic:
“One of the most radical, and exciting departures from previous practice has been the development of the Less Adversarial Approach within the Family Court of Australia.The government put to one side a tribunal model, recommended in “Every Picture Tells a Story” partly on the basis that the Court would continue to embrace a less adversarial means of resolving parenting disputes.
“The pilot program, Children’s Cases Program (“CCP”), had commenced prior to the release of the framework statement and was an initiative of my predecessor Alistair Nicholson.
From its incarnation, the pilot was the subject of extensive evaluation by Professor Rosemary Hunter and Dr Jennifer McIntosh.The nature of Less Adversarial Trial has meant a change in the manner in which hearings are conducted by Judges. All of the Judges of the Court have received training in what are essentially different communication skills and I thank all of them for their embracing of a new way of hearing cases. It is a significant change and will require ongoing support. A session held during the recent Judge’s Conference enabled those more experienced to share their experiences with those who had not been doing trials in this way for long.
It is an evolutionary process and I am sure we still have much to learn. I am grateful to all of the Judges for their willingness to embark on this journey. The profession too, participated in workshops conducted by the Family Law Section to familiarise them with the process and assist them to take an effective part.The Less Adversarial Trial is the manner by which the Family Court has chosen to give effect to the requirements of Division 12A of the Act, and will apply across the board to all children’s cases initiated pursuant to Part VII of the Act after 1 July 2006 and by consent to financial matters. It is premised on the Children’s Cases Program (“CCP”) model which was the trialled in the Court’s Sydney and Parramatta registries throughout 2004 and 2005.
The model was also rolled out in the Melbourne registry in late 2005. Following requests from the legal profession, the program was continued beyond the pilot in all registries. A study was undertaken by Dr Jennifer McIntosh, titled `The Children’s Cases Pilot Project: An exploratory study of impacts on parenting capacity and child well being’, and released in March 2006. The study was intended to sit within the broader evaluation undertaken by Professor Rosemary Hunter, which was released in July 2006.The report of Dr McIntosh specifically explored the impact of CCP on parenting capacity and child wellbeing. The report compared data from parents participating in CCP with similar data from parents in a control group of cases that were finalised in the same period. The CCP sample reported:1. More satisfaction with post-court living arrangements, including for the children;2. Ssignificantly less difficulty in managing conflict a positive impact of the court process on themselves as parents;3. Significantly less damage to the parenting relationship post-court and to the parent child relationship, and4. Greater contentment and emotional stability in children after court.
The CCP group reported significantly lower levels of psychological hostility in their relationship with their ex-partner than the mainstream group three months after court. They reported significantly less damage and a more positive impact of the Court process on them as a parent. The overall picture was one of greater contentment and emotional stability in their children after court, compared with ‘mainstream’ parents.
A final evaluation report prepared by Professor Rosemary Hunter of Griffith University in Queensland, similarly found that as a less adversarial and more child focused process the CCP has the potential to assist parents to parent more cooperatively.
Professor Hunter also found that parties who had participated in CCP were generally more satisfied with that process than parties whose dispute was determined using a traditional adversarial approach.
Bryant then commited the court to the collection of statistical data on outcomes of cases.
“The Court has not previously collected data on the outcomes of cases. For example, the Court has previously been unable to refute criticism by reference to statistical proof.
“Oscar Wilde is quoted as stating that “The only thing worse than being talked about is not being talked about.” Well, to those whom have ever found themselves frustrated by media or political comment which trades on a gross generalisation or on the testimony of a dissatisfied litigant, you may well agree that it is far worse again to be spoken of inaccurately.
“The dissemination of statistics will enable the Court to address claims regarding the orders that it makes, including any suggestion of bias towards one parent or the other.
“There are many reasons why it is essential that the Court use its best endeavours to address inaccurate comment and misapprehensions as to the role of the Court and the nature of its objectivity. It is likely to compound the confusion of a litigant if they lack confidence in the Court because they have been exposed to misleading information.
“Criticism can further lead to a general lessening of confidence in the law, the erosion of the `rule of law’ and discourages those who seek to practice within the Court and in the profession.
Constructive criticism is an essential element in the evolution of the Court and I do not seek to discourage a constructive dialogue, but that dialogue will now be constrained by valid statistical data.”
Bryant concluded: “The last two years seem to have been filled with significant changes and there are more to come. I hope that during the next two years we can reduce delays, improve case management and have a plan for the Courts.”
Mutterings against the reforms from the ancien regime of the court did not cease even after the Family Relationship Centres began to be rollen out.
In 2007, an election year, the Howard government, was on the nose after more than a decade in power. The statistics might have shown that the nation had never been so prosperous, but this wealth was generated by the mining boom in Western Australia, not by booming economic activity. In the suburban mortgage belt hocked to the eyeballs, which had delivered for Howard in the past, many could not afford the lifestyle they had come to expect. These same people, who had voted conservative for the first time in their lives and delivered an arc of once staunch Labor seats to the coaliton, felt betrayed by John Howard’s industrial relationship laws, by his commitment to the never popular Iraq war, and by his failure to deliver them the economic security they craved. His failure to deliver decisive reform on the vote-changing issues of family law and child support cost him, by some estimates amognst family law reform advocates, a million votes. They were votes he could have desperately done with.
Instead of votes, the Federal Government copped criticism from both sides. While the Attorney General Phillip Ruddock travelled the country selling the “reforms”, continuing to claim they were the most decisive reforms in 30 years, was met with the embarrassing sight of protesting fathers. The Family Court establishment continued their critique.
In December 2006 the ABC reported that the Family Court and the country’s longest serving judge Kemeri Murray, who had joined the court in 1972, delivered a broadside at the reforms during her retirement ceremony in Adelaide.
The broadcaster reported that she told the 200-strong crowd she was concerned that staff at the centres were not obliged by law to tell separating couples that any parenting agreements they entered into were not legally recognised.
Joining the ever more out of control domestic violence bandwagon, she said she was most concerned that clients were not told they did not have to attend the compulsory mediation sessions if they were victims of domestic violence.
“And if some women, particularly the women, don’t know about their rights to say ‘look I’m not coming to a conciliation centre, I’m not going to agree to a particular plan which gives equal time with each parent because I’m frightened of domestic violence’,” she said.
“If the woman doesn’t know that, that’s not good enough.”
Justice Murray said it was vital that separating couples were aware of their legal entitlements.
“I worry about that because, of course, I don’t know that it’s the workers’ duties at the centres to tell parties their legal rights,” she said. “The fact is I think there should be an obligation on them. “They should be able to tell parties that come if you want to enter into a parenting plan, fine, but it’s not binding.”
In this same month Chief Justice of the Family Court Diana Bryant also came out swinging on the issue of the court’s bias. On the day before Christmas, the single most emotional and distressing time of the year for separated fathers who would not be seeing their children as a result of the court’s decisions, Bryant was quoted in The Age newspaper in Melbourne:
“One of the things that frustrates me most is people saying that the court is biased – or that there is a systemic bias against fathers.”
The timing of the claims showed an extraordinary insensitivity.
Reporter Liz Porter wrote that stung by criticism that it is biased, the Family Court was hitting back by keeping detailed records of its decisions on parenting.
Bryant said the court had started documenting the number of shared parental responsibility arrangements and the number of orders where a mother or father was given sole responsibility for children.
Reasons for the exclusion of one parent were also being recorded, with the categories including “family violence”, “mental illness”, “substance abuse”, “distance” and “entrenched conflict”.
What Bryant neglected to say was that the shambolic court was being forced to keep these statistics by the Attorney General’s Department.
“With the parliamentary inquiry recently there was a lot of discussion about what the court was and wasn’t doing,” Justice Bryant said.”There were a lot of people saying the court was biased. But nobody pulled out a judgement and said ‘the result was wrong’. It was all about impressions and rhetoric and the court itself wasn’t really able to respond well to that because we don’t have the data.”Is this unprecedented fact-gathering exercise an effort to combat allegations by the Blackshirts and other men’s groups that the court discriminates against men?”
How typical to use a fringe group like the Blackshirts as if they were representative of father’s groups.
The article went on to report he Chief Justice said in the past, the court had been unable to refute criticism with statistical proof.
The parenting order data will be posted on the court website, along with links to the 850 judgements handed down each year.
The Family Court is also planning a February-March blitz on a backlog of 1490 Melbourne cases awaiting a final trial. All nine Melbourne judges will be sitting, with three extra judges being brought from interstate to help clear the list.
Delays in the court increased in the 2005-06 financial year, with 90 per cent of defended cases now taking up to 26.9 months before a final judgement – more than two months longer than in 2004-05. But the Chief Justice said that the number of “pending” cases had dropped over the past two years, from 2100 in January last year, to 1550 last October and 1490 now. She said the backlog of older cases was being cleared so judges would be free to start working on the new, “less adversarial trials” – a system that applies to all cases that began after July 1 this year.
Under this system, one judge would run each case from the beginning, helping the parties narrow down the issues in dispute and making hearings shorter.
Justice Bryant said having different judges at different interim hearings was identified as one of the many factors that bothered clients of the court.