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  • Our new poor law: a court in crisis
  • Sydney Morning Herald
  • 21/10/1998 Make a Comment
  • Contributed by: Admin ( 14 articles in 2001 )
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The following is an edited text of the "State of the Court" address by the Honourable Alastair Nicholson, AO, Chief Justice of the Family Court:

MEN'S GROUPS

The most strident critics of the court emanate from groups of men who regard themselves as having been badly treated by the Family Court system.

Many of their concerns relate to child support issues over which this court has little or no control. Others relate to enforcement of court orders for contact and there is an overall concern that the system is in some way loaded against them.

In the property area, many men find it difficult to accept that a woman's contribution as a homemaker and parent is valued as highly as their economic contribution.

There are no doubt many cases where the end result is one that is not as satisfactory as each party would want. There are no doubt some where opinions could differ as to the result. There is a natural tendency to blame the institution, in this case the court that has the task of deciding what should happen when people are unable to agree about their children. It is rarely recognised that the problem is not one of the court's making but that of the people involved.

There are unreal expectations as to what a court can do. A court cannot make people act contrary to their nature or experience. A court cannot make children want to go on
contact visits. A court cannot create assets or income where none exist.

All courts can do and the judges who make them up, is to do their best in each case to arrive at the fairest result possible.

In this country there is very much a culture, if unsatisfied with a Family Court decision, to complain to a Member of Parliament. Federal members tell me, and I have no reason to doubt them, that most of the complaints that they receive from constituents relate to Family Court matters or child support matters. The better informed realise that this inevitable, but others begin to feel that there must be something wrong if this volume of complaints occurs. The pressure groups are well aware of this and do their best to swell the volume. When you only hear one side of the story it is all too easy to conclude that there has been a glaring injustice. When the transcript of the case is obtained, a very different story usually emerges. I am tired of listening to armchair experts, some of whom are in the media, who listen to one side of a very complex story and jump to a conclusion of injustice or worse.

As I said at the 1995 conference, there is a more sinister element at work. I have absolutely no doubt that there are many persons associated with men's groups in particular who have an agenda to change the law to the disadvantage of women. To many of these people, women's emancipation has either not occurred or should not have done so. A feature of their rhetoric is a complete absence of concern for children other than as objects of their rights and entitlements. They frequently engage in the grossest form of harassment of their former partners and their children. Many demonstrate in strident terms outside the court. Some even stand for Parliament, with a signal lack of success.

These people undoubtedly do themselves and their children a great disservice. There are issues relating to men and families that deserve to be aired. There are people who could receive better and more caring results from the system. More could no doubt be done but these people actually stand as an obstruction to change. Their own bitterness and their inability to look beyond their own cases and the supposed injustices that they
have suffered, stand in the way of any sensible dialogue.

SELF-REPRESENTED LITIGANTS

The reduction in legal aid has led to a new difficulty over and above the difficulties already facing the court.

I do not believe this to be a jurisdiction where self-represented persons can do adequate justice to the case that they wish to present. Apart from the normal difficulties that such persons would have in an ordinary court, the nature of family law is such that it is almost impossible for persons to examine or cross examine their former partner in an objective, effective or meaningful way.

When there are allegations of violence or child abuse the position becomes even more difficult and if the child is not represented there is no meaningful cross-examination of the witness by anyone. It is impossible for the judge to do so without appearing to be partisan.

In the area of case preparation, the court's carefully crafted case management guidelines become useless because of the inability of lay persons to prepare written material that satisfies the guidelines, and affidavits often contain a mish mash of irrelevant material - often of a scandalous nature.

Settlement negotiations become almost impossible as neither party has access to independent and skilled advice. This in turn prolongs litigation and further clogs the court lists.

This not only a problem at first instance but also on appeal, as discussed previously.

LEGAL AID

Family law is in crisis in our community and one of the prime reasons for this the reduction in legal aid that has occurred over recent years. I should indicate at the outset, lest I be thought politically partisan, that the decline in the availability of legal aid to family law commenced prior to the election of the Coalition Government in 1996, although there can be no doubt that the Coalition accelerated this process. Prior to that time however, the family law share of the legal aid pie had steadily declined and I made a number of protests to the former Government about that fact, to no avail ...

The ready availability of legal aid was an essential concomitant to the Family Law Act at the time of its introduction as a reading of the act of 1975 makes clear. It also makes sense, because the conferring of rights upon people in marriage and other relationships and their children quickly becomes meaningless if there is insufficient funding to enable them to enforce those rights. That is precisely what we are seeing today.

There is a wealth of anecdotal evidence of those problems and every judge registrar and counsellor present would, I suggest, have plenty of harrowing anecdotes.

I am particularly concerned about the failure to provide aid at all levels including the appellate level. Let us not forget that appellate decisions are decisions that are likely to shape the law and are binding on all judges at first instance as well as magistrates applying the act, and yet the court is consistently being deprived of the assistance of counsel. It has been a fundamental of our system of law that such cases require counsel to ensure that all relevant matters of law are considered by the court. What we are now seeing is a serious breakdown of the system. If it is unfair for a trial to proceed in a serious criminal matter without legal representation, how much more so is it in a case involving the welfare of the child?

FAMILY VIOLENCE

Unfortunately it is necessary to once again make reference to the issue of family violence which continues to devastate so many of the families with whom this court comes into contact. The killing of women outside the Dandenong and Parramatta registries late last year reinforced the concerns we all have about the prevalence of family violence and made us all painfully aware once again of how fragile are the lives of many who seek our assistance ...

Unfortunately, however, the fact that more is known about the dynamics of families and the factors which are conducive to domestic violence does not necessarily mean that we have improved measures to combat it. Moreover, the various surveys, which show high levels of community acceptance of domestic violence - by both men and women - are extremely disturbing and indicate that the intergenerational transmission of violent behaviour to children is obviously continuing.

In a stark reminder of the extent of family violence in our community there were 8,632 cases last year in the Family Court of Australia where separate interviews were requested and held because of family violence. These interviews are offered when there has been a history of violence in the relationship and one of the parties indicates that they are worried about their physical safety and are afraid to be in the same room as their former partner ...

The focus for both the court and community agencies is clearly on the provision of a range of services for families, many of whose members are dysfunctional, at least when they present to us ... One matter of obvious concern is the possibility that delay may exacerbate violence and another is the continuing reduction in legal aid, which may also have this effect. The cost to innocent people of current legal aid policies comes high even if the Government saves money.


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