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Chief Justice Speech - Family Law Reforms - 12th National Family Law Conference - 23 October 2006

Do you think the Family Court have clearly understood the key elements of the Family Law amendment - The Family Law Amendment (Shared Parental Responsibility) Act 2006

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"State of the Nation" summary by Chief Justice Dianna Bryant of the Family Court

Family Law Reforms - 12th National Family Law Conference - 23 October 2006
Papers and reports related to Australian family law and the Family Court of Australia

Author: The Honourable Chief Justice Diana Bryant

Chief Justice Diana Bryant
Family Court of Australia

12th National Family Law Conference
23 October 2006 - PERTH

Family Law Reforms

The Family Court of Australia celebrated 30 years of service this year 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. I will report on what has been achieved in those two years using the four areas of reform identified by the government which I will reframe in terms of their relevance to the Court.

Legislative change [A greater emphasis on shared parental responsibility]

This was addressed by the Family Law Amendment (Shared Parental Responsibility)  Act 2006 which came into effect on 1 July 2006. It is too early for any discernable trends in decision making or jurisprudence, but at the end of October 2006 the Full Court will hear some appeals arising from interim hearings and the question of whether Cowling in its present form survives the amendments.

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.  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.

The establishment of a network of Family Relationship Centres

For the complete speeech open the in line PDF file

Dianna Bryant Speech in PDF format

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