Before I begin, I would like to acknowledge the traditional owners of the land on which we are gathered here today: the Turrabul People. I pay my respects to their elders, past and present, and to the Elders from other communities who may be here today.
It is apt that I am here to deliver my last speech to the 2018 FLS Conference just prior to my retirement; my first speech was to the 2004 Conference shortly after my appointment to the Federal Magistrates Court. It is fitting too, that the newly-announced Chief Justice is here to give his first speech to an FLS Conference. I warmly congratulate Deputy Chief Justice Alstergren on the announcement of his appointment as Chief Justice and Justice McClelland on the announcement of his appointment as Deputy Chief Justice.
Firstly, I want to state as someone who came to family law late, that Family Law is real law and family lawyers are real lawyers. What can be more important than the best interests of children? The fact that Family Law has a strong element of discretion, especially in relation to children’s matters, does not mean that it is somehow not part of the mainstream legal system. It does not mean that the rules of evidence are irrelevant or that there is an absence of a strong legal framework within which the Court and practitioners must operate. Family Law is diverse and traverses a wide range of areas including constitutional law, criminal law, taxation, trusts, international treaties, evidentiary matters and subpoenas, trans-national property transactions, and conflicts of laws. Contrary to what is often said by non-family lawyers, the Rules of Evidence are very important and far from irrelevant. Legal acumen, experience and preparation matter just as much as in any other jurisdiction.
I want to start with a brief overview of the court’s workload. The Family Court of Australia received 2,427 first instance fillings last financial year, and finalised 2,534 first instance matters. There were 390 appeals filed. The Full Court published 320 appeal judgments and there were 50 single-judge appeal judgements published. There remains 3118 first instance final orders matters and 220 appeals pending. Despite this, the Court is operating at a 100 per cent clearance rate, which is pleasing.
The work of the Family Court is difficult and often confronting. There can be no doubt about the commitment and dedication required of judges and staff to do the work every day.
There is a clear need for a superior court in family law to deal with matters such as complicated financial cases that involve complex trust and corporate structures; allegations of extreme child abuse; international cases that involve conflicts of laws, adoption and abduction; and those that are on the cutting edge of developments in technology, medicine and psychology. These require the attention and precedent-setting decisions of a superior court.
On the issue of appeals, I note the critical importance of a thorough, in-depth and expert knowledge of family law. Without such knowledge, it would be much more difficult to ensure that a just and proper conclusion is reached. It is important that single-judges dealing with appeals in Family Law have appropriate family law background and experience, and that larger panels include judges with relevant Family Law experience. The High Court has noted on several occasions that hearing an appeal of a discretionary decision is no easy task and this certainly accords with my experience.
I want to acknowledge the Federal Circuit Court as the workhorse of the system. I’ve said many times before that the terms and conditions for the judges of that court must be brought into line with the other courts, especially in light of the increasing complexity of the work that judges now handle, much of which was previously handled by superior courts. Both courts need the ongoing support of the profession.
This family law system and the courts could not function without the assistance of the legal profession, whose contribution in assisting in reducing the scope of disputes, facilitating settlements and consent orders, and ensuring that the court has the best information before it in order to reach an informed decision, is invaluable.
What a long and winding road the family law journey has been. Since the Family Law Act 1975 was passed there have been around 50 major inquires, royal commissions, and special commissions of inquiry in State and Federal jurisdictions. What was a simple act in 1975 has become very complex indeed. Simple concepts, like the best interests of the child, have given way to a host of provisions which the judge must take into account, and property divisions have similarly suffered from increasing complexity.
Perhaps it is the importance of ‘family’ in our society and the changing dynamics of family relationships that explains, in part, why there is such a focus on trying to deliver a better family law system. The family law system must continually evolve in order to meet the challenges of social change. However, courts cannot deal with these issues alone; rather, the whole community must be committed to working together to tackle the causes of violence and protect our children.
We are in a further period of change and upheaval in the family law system, with the legislative restructure of the courts before Parliament and the ALRC review of the system as a whole well underway. While reform and the structure of the family law system is ultimately a matter for Parliament, there are a number of ways that the Family Court and the Federal Circuit Court can and are working together to improve efficiency and accessibility to litigants. The first of these is harmonisation of our rules, which will make it easier for litigants, particularly self-represented litigants, to navigate the system. Another important project is the development of a single point of entry for the two courts. This will streamline case management and reduce pressure on judicial resources. I’m quite sure that the new Chief Justice will move quickly on these issues.
The recently released ALRC “Discussion Paper” outlines significant reforms which I would broadly support. In this regard, I note the comments of Chief Justice Bathurst, to the effect that, the justice system in NSW would have collapsed if it had not been for court-ordered mediation; ADR is critical to all courts. It is also worth remembering the excellent system of triage which operated in the Family Court prior to the introduction of Family Relationship Centres.
If legislation and the ALRC do not assuage public concern, it must be time to consider a Royal Commission into Family Law. This will allow comprehensive public discourse by all stakeholders on all elements of the family law system and the protection of children. Continual tinkering with the system—which we have seen for the past 40 years—in my opinion, adds to complexity, uncertainty and cost.
Whatever happens, the focus must be on the best interests of children, including their safety, and the welfare of families. The courts must not be drawn into political controversies; judicial independence and the separation of powers must not be compromised.
Over the years I have been a judge, I have seen a very significant rise in violence and family dysfunction. If this is the experience of the courts, then I am sure it is also the experience of the profession. The number of self-represented litigants has grown sharply, as has the presence of mental illness and substance addiction. All of these factors put children at risk.
It is a sad fact that the spectre of violence and harm is present in the courts every day and adds a high level of stress to the work of the judges, who must be commended for their efforts to protect those who are vulnerable. We have seen some awful cases since I have been a judge: cases such that of Darcey Freeman, and the recent Edwards’ murders. These are matters that haunt us all and lurk in the shadows as we face new cases with allegations of violence and wonder which seemingly commonplace case may suddenly take a horrific turn.
While our understanding of the complexity and diversity of family violence has improved considerably over the last few decades, reports indicate that despite legislative reform, the justice system continues to lag behind developments in our understanding of, and approach to, family violence. We need to continue to do better; education is a key element in this effort.
The Judges of the Family Court will undergo family violence training, as part of the National Judicial College of Australia’s Government-supported training for judges, in November.
It is expected that data on family violence will improve over the next decade and this will further improve understanding; there is a need to stay informed and responsive, and to be informed by fulsome data, research and evidence from psychologists and social workers. The role the Courts play in the lives of families experiencing violence is an important one and a heavy responsibility. We also need to be mindful of the toll this takes on judges, staff and the profession. Ongoing support is needed to ameliorate the traumatic effects of exposure to cases involving violence and abuse.
There are a great many challenges ahead, both with proposed structural reform and recommendations from the ALRC family law review. The new Chief Justice will navigate the Court through the changes and I wish him every success.
I have had the great privilege of serving as Chief Justice of the Family Court of Australia, albeit for a limited period. It was an honour I did not expect. The Court has forged a significant international reputation and developed many innovative ways of assisting families in dispute. It has been an honour to lead the Court at a time of change.
I want to thank the judges, registrars, associates, family consultants and staff of the Court who have worked with me during my time as Chief Justice. You have my admiration and my thanks. You are all to be congratulated for the work you continue to do every day in difficult circumstances.
It is also appropriate for me to thank the judges and staff of the Federal Circuit Court, of which I was Chief Judge for many years. As I said earlier, the Federal Circuit Court is the work-horse of the federal court system, and deals with the vast majority of filings in both family law and general federal law. I have always been in awe of the contribution of its judges and staff, and very proud to have been the Chief Judge.
Last, but not least, I want to thank the profession. Your work can be dangerous, confronting and exhausting but the system would not function without you.