Empire building at the Family Court
Martin Lehmann 11 December 2001
Chief judge of the Family Court of Australia,
Alistair Nicholson, has been strutting the media stage drumming up support for
his plan to get more funding for his legal empire. Chief Justice Nicholson
cites delays in family court proceedings as the reason for more funding. He
wants to employ more judges and expand his massive bureaucracy. The pompous,
prickly, politically correct chief judge has clashed with Attorney-General
Daryl Williams over funding. Williams maintains that although the caseload of
the Family Court has doubled in the last decade, funding has quadrupled.
Chief Justice Nicholson, naturally, only sees the
problem from a lawyer's viewpoint. It is exactly the opposite of what is
needed. Getting lawyers involved in family disputes is akin to pouring petrol
on smouldering flames. Anyone who has endured the trauma of Family Court
proceedings will attest to that.
A Family Court trial is no less traumatic than a
criminal trial. Spouses and their witnesses can be subjected to vicious
cross-examination for days at a time. And the judge can step in and assist in
the cross-examination, knowing he cannot be subject to the usual media
scrutiny- the Family Law Act prohibits publication of the proceedings. And for
what purpose? Not to ascertain if one partner has breached the marriage
partnership agreement but to determine how the family assets are to be
distributed (often an exercise in futility as lawyers fees can easily soak up
most of the assets), or to determine winners and losers in custody battles.
When
defending their appalling system, Family Court lawyers claim that less then 10
per cent of disputes go to trial. They fail to mention the trauma of the
parties involved in "settling" their cases. Most English speaking
countries use the adversary system of legal "justice". It requires a
contest with winners and losers. Consultation and negotiation are alien concepts
in this system.
The adversary system operates unfairly in that, both
in specific cases and by its general operation, it causes injustice to those
who are affected by it.
- Justice Geoffrey Davies, Queensland Court of Appeal,
1996
The
parties to the 90 per cent "settled" cases often endure months of
legal wrangling, bitterness and legal costs that may run to tens of thousands
of dollars.
Families
need less, not more, judges and lawyers to intervene in their lives.
The
following proposed policies are put forward in an attempt to look further than
lawyers to assist in family disputes.
PROPOSED
POLICIES - FAMILY DISPUTES
- Replace the
Family Law Act with a new act that recognises that marriage or a
permanent relationship implies a form of partnership agreement with
obligations of the parties with regard to mutual support, fidelity and
the proper caring for children
- Set up a
Department of Family Affairs to deal with all aspects of family disputes,
including parent/children disputes. This Department to provide a full
range of family services including counselling, mediation, parent
training, and refuges. All of the services to be provided in a non-legal,
non-threatening environment. Legal advice to be restricted to free joint
legal advice regarding custody, maintenance and property rights and
obligations.
- Parties to a
dispute may only seek assistance in the Family Court after they have
exhausted all avenues of help at the Department of Family Affairs.
- The Family
Court to take into account breaches of the partnership agreement.
- Allow reporting
of Family Court proceedings. Judges have always had the power to prohibit
reporting of individual cases where they deem it necessary.
