3 May 2009
The Chief Justice of the Family Court has a battle on her hands
By Laurie Nowell
Peace-maker: Chief Justice Diana Bryant is admired
among her colleagues for her conciliatory manner.
Chief Justice Diana Bryant is a judge caught in a crossfire.
The battleground is not the sordid, blood-soaked trial of a gangland criminal. It is the far more thorny, emotive and mercurial landscape of family law.
Chief Justice Bryant, Australia's top Family Court judge, has found herself in the middle of a civil war between community groups over changes to the Family Law Act.
A new campaign kicking off Sunday seeks to overturn amendments to the Act that have established the principle of "shared parenting" and effectively given fathers a better chance of having greater access to their children in custody disputes.
But fathers' groups are adamant the changes are for the better and should stay. They say they will oppose the campaign "tooth and nail".
For both sides, the battle is emotional and personal and could easily descend into acrimony.
And, as in all emotional exchanges, sometimes fact, myth and assumption become blurred in the haze of propaganda and spin.
Chief Justice Bryant stands as an honest broker in the middle of the melee, with an armoury of case law, statistics and reason.
She said there was a "tension" between what the Family Law Act described as "the benefit to the child of having a meaningful relationship with both of the child's parents" and "the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence".
But Chief Justice Bryant said this tension had to be determined by judges on evidence - not populist public campaigns - but with a particular emphasis on child protection.
"Protection of children should need no debate," she said.
"We live in a society where we regard the protection of children as being vitally important and we want our courts and other institutions to support that position."
But she realised theory and reality differed sometimes, saying: "It is a controversial topic that usually breaks down on gender lines."
Chief Justice Bryant said there was a misunderstanding in some sections of the community that children's interests remained the ultimately defining factor in family law cases.
She said a widely held belief that the Act required courts to apply equal shared parental responsibility and equal shared time - and that the courts were routinely doing this - was wrong.
She pointed to statistics that show a 50/50 care arrangement was awarded in only 15 per cent of litigated cases. Parties agreed to a 50/50 arrangement in 19 per cent of cases.
In a third of litigated cases, the Family Court ordered that children spend 30 per cent or less of their time with their father. Abuse and/or family violence was the major reason those orders was made.
In 9 per cent of litigated cases, the Family Court ordered that children spend 30 per cent of less time with their mother. The major reason was the presence of mental health issues.
In 6 per cent of litigated cases, the father was ordered to have no contact with the children. The same order was made in respect of mothers in 1 per cent of cases. Abuse and family violence were the major reasons th0se orders were made.
In a broad-ranging interview with the Sunday Herald Sun, Chief Justice Bryant:
- SAID the Family Court now dealt only with the most difficult and complex cases - mostly involving serious allegations of abuse or high conflict;
- REVEALED the Family Court was trying to make the system less adversarial, with more counselling and judges talking directly to parties in cases;
- ADMITTED enforcing the court's orders had become a problem;
- CALLED for the establishment of a government official to bring enforcement proceedings against parents who breached orders; and
- SAID family law was becoming expensive for ordinary people and that legal aid was underfunded.
Chief Justice Bryant said family law had become more complicated in recent times.
"The Act is not simple. The sections about proving breaches have been made more complicated by the 2006 rules," Chief Justice Bryant said.
"It's more complex than it was, there's no doubt.
"People have to bring their own applications and it's expensive. I think there should be some government official who brings enforcement proceedings.
"Perhaps we should have some sort of filter, where somebody looks at whether there is a need for some adjustment to orders or some assistance to make them work.
"Legal Aid is reluctant to give aid for enforcement and it's expensive, and I accept that that's a problem at the moment. It's difficult to bring enforcement proceedings."
But Chief Justice Bryant hailed gradual changes that were making family law less adversarial.
"I think the majority of family lawyers understand the dynamics and are keen to see people resolve things in a reasonable way," she said.
"We've gone through interesting changes. Originally the legislation was to make it less adversarial, but I don't think they understood in the 70s how it was going to evolve.
"What happened was that it solved the issue of divorce, which now is almost an administrative act.
"But people then started to fight about other things.
"In a defended divorce in the old days, you had to prove someone was at fault.
"But once you removed that you then got to look at other issues – what happened was that people started to fight about the other issues, about property, about parenting.
"But in the past decade I think everybody's been looking at ways of trying to be less adversarial, because I think everyone is starting to understand now that one of the things that is bad for children is conflict.
"There are a lot of things that are happening - the family relationship centres that the government has set up to try to get people to come to agreements without recourse to court are playing a big role.
"And we have a new process in children's cases where the parties, on the first day of court, speak directly to the judge.
"The judges determine the issues with the parties before allowing them to file affidavits. And that's quite important.
"One of the things we do try to do is stop people filing huge affidavits, which just inflame the issue."
Chief Justice Bryant has a different style to her predecessor, the high-profile Alistair Nicholson.
She is said by people in the legal profession to be very conciliatory and not worried about her own legacy.
"She is a straight-shooter who just tries cases on the facts and by the law," said one experienced family law practitioner.
Indeed, she seems uncomfortable discussing the notion that she might have some influence on shaping society.
"I don't think that is the role of Chief Justice to the extent of the decisions of an individual court or the full court," she said.
"I interpret legislation. I suppose that's influence, but we have a lot of legislation and Parliament itself takes a much more active role in shaping how they want things to be than in the past.
"As for my own place in history, it's too early to tell."
It may be that if an emotive and polarised civic debate on family law kicks off in Australia, an arch conciliator armed with facts and reason will be much needed.