AUST: All about the children
From http://www.smh.com.au/articles/2004/03/26/1079939845373.html
All about the children
March 27, 2004
The departing head of the Family Court agrees it needs a new direction - but not the one the Government has in mind. Margaret Simons talks to Alastair Nicholson.
It must have been an extraordinary meeting. On the one hand Philip Ruddock, the pallid and wintry Christian Attorney-General. On the other, Chief Justice Alastair Nicholson, apple-cheeked and snowy-haired, one of Ruddock's most fiery critics and one of our most controversial judges.
The encounter took place a few weeks ago. It was their first and probably last extensive conversation. What was it like? Nicholson gives one of his wry smiles. Ruddock was, he says, "courteous" and listened "cautiously and with interest". But he gave no indication of his plans for the court after Nicholson's departure. Nicholson notes that Ruddock agreed to speak at his farewell function, then jokes, "Perhaps he wants to make sure that I have gone."
Nicholson retires this week after 16 years as head of the Family Court, but even among the champion gossips of the legal profession there is no hint of who might replace him. Ruddock is keeping his cards close to his chest but the signs are that the Howard Government plans major changes to family law. Ruddock has nominated it as a field he intends to reform, and the Prime Minister has this week briefed backbenchers that it is an area he will use to seize the political agenda back from Mark Latham.
With Nicholson gone the court will have lost its chief defender while the vocal men's groups, who are the court's chief critics, have the ear of Government. Some even talk about the end of the Family Court.
Nicholson has spoken out on the Government's treatment of asylum seekers, the rights of children and the impact of economic rationalism on families. He has appeared the more extraordinary as the society around him has grown more conservative.
Now, after 16 years, he is ending his career with what some see as an admission of defeat. He says the adversarial system is not working. It fails families, and in particular the children caught up in family breakdown. Change is needed. But what change? And who, if anyone, will replace him? He is going on leave for three months, so his post does not officially fall vacant until July, giving the Government plenty of time to prepare.
NICHOLSON is leaving the court at the most sensitive time since it was established in 1975. Set up by the Whitlam government at a time of great reforming optimism, it was to preside over a system in which, for the first time, those who wanted a divorce did not have to wrangle over who was at fault.
Nicholson was appointed in 1988 by the Labor attorney-general, Lionel Bowen, who says he chose him because of his understanding of human behaviour. Already the optimism about family law had been dented by fierce controversy and bomb attacks on court judges. It was clear the Family Court had become and would remain the nation's most difficult jurisdiction.
Since then Nicholson has fallen out with governments of both political colours, and is probably the most loved and hated judge in the country. A search of the internet turns up extraordinary vitriol from radical men's groups. More moderate groups talk about him being "snowed by feminists".
But enemies and friends talk about his compassion for families, and children in particular. His time at the court has been characterised by a concern about family violence, and a determination to make the court's services accessible to the disadvantaged, including remote indigenous communities.
Nicholson announced his retirement date more than 20 months ago, but friends believe that if he could have foreseen the circumstances of the court today, he might have decided not to go.
Late last year, a parliamentary committee investigating child custody disputes recommended a new family tribunal to run without any lawyers. The recommendation, which is before cabinet, is believed to have Ruddock's support but opposed by the legal profession and by Nicholson, who describes it as "woolly and not well thought through". The committee recommended that only the most difficult disputes, including those involving allegations of violence and child abuse, should go before the Family Court.
Nicholson says he is not sure where the concept of a tribunal "fitted in", given that it was already the case that only about 6 per cent of the most difficult cases went before a judge. Preventing people from being represented by lawyers would disenfranchise those who lacked bargaining power.
There are also difficulties under the constitution that he doubts could be overcome. "Telling someone they can't have a lawyer sounds great if you have some view that lawyers are essentially evil, but if you are in a difficult emotional battle with someone else you actually want someone on your side," he says. But Nicholson and his critics agree that adversarial justice enshrines conflict, and damages children. Change is needed.
One of his last acts has been to create a pilot scheme based on the European system of inquisitorial justice, in which lawyers still represent the parties but judges have greater control over how cases are run, including what evidence is heard. Judges can switch to a mediation role if they think that is useful.
The aim is to reach agreements more quickly and get rid of the huge affidavits about who did what to whom 15 years ago, and whose fault it was that the children got sunburnt.
"I don't know what my successor will make of it," Nicholson says of the pilot scheme. It is being comprehensively monitored. He hopes it is at least given a chance to work.
He rejects suggestions that his criticism of the adversarial system, over which he has presided for so many years, is an admission of defeat. "I think it's just part of a change mechanism. The law ought to evolve." He stresses that his problem is with the adversarial system, rather than with the Family Law Act. Previous reviews have "tinkered" with the law, and fixed little.
His diminishing faith in adversarial justice is partly the result of cuts to legal aid, meaning that many people come before the court without a lawyer to help them. "The whole concept ... of the adversarial system is dependent on both sides having skilled legal representation. That way there is a reasonable chance of some just result emerging."
But legal aid is not the only issue. The present system prolongs and runs on conflict, when studies suggest that it is conflict, rather than separation, that harms children.
"Litigation is driven by the attitudes of the parties, and in family law the attitudes of the parties are often not very reasonable," he says. "I became somewhat tired over the years presiding over disputes in which people really were not getting to the point, and spending a lot of money on counsel arguing over issues which really weren't going to affect me in terms of the result."
He now believes the original vision in which the court was founded was partly wrong. "It was a good thing to do to get rid of fault, but I don't think anyone realised that the fights don't lie in the grounds, although they might have appeared to do so. The fights are always going to be about the children and property."
Nevertheless, he sees no cause for regret about the establishment of easy, no-fault divorce. The old system was pointless and the process was humiliating.
IN PERSON, Nicholson is genial, and quick to talk about issues. He never fails to answer a question directly and with a candour unusual in public life. But he is slow to delve into the personal, and seems almost puzzled when asked about the effect on him of his work - all the pain, love and hate he has seen.
He has no regrets about the judgements he has made: "Everyone makes wrong decisions. But I've done them all to the best of my ability." He sleeps well, but takes with him into retirement vivid memories of families torn by conflict, and suffering children.
The people who have impressed him most have been relatives and friends who have intervened in disputes out of genuine love for the children. The main thing he has learnt, he says, is that family dynamics are a mystery.
Last year he and the other judges of the Full Court upheld the validity of a marriage between a woman and a transsexual man who was born a woman, and rejected an appeal by the Attorney-General against the marriage's validity. It was a case that went to the heart of our notions of gender, marriage and family.
Although Nicholson was married 40 years ago in a Presbyterian church, today his views are secular, intellectual and pragmatic.
He describes himself as not an atheist, but not really a Christian. Marriage, he says, is about commitment, and companionship - and nothing more. It is not set in stone and it is not sacred.
He supports legislation allowing for same-sex marriage. "I think we are all very prissy about those things." There is no evidence, he says, that the children of same-sex couples suffer.
Nicholson counts among the chief misfortunes of his public life that it has taken place in a time when idealism has been in retreat. His departure represents the breaking of a link with the reforming optimism of the court's early days, and the time when it was possible to believe that, freed from restrictive laws, people would come together, love and part in civilised dignity.
The future will start from a sadder set of assumptions.
A life in the law
Born August 19, 1938. Brought up on his parents' coffee plantation in Papua New Guinea. Educated as a boarder at Scotch College and University of Melbourne.
1961 Admitted to practise law.
1963 Joined the Victorian Bar.
1972 Stood unsuccessfully as the ALP candidate for the federal seat of Chisholm.
1979 Made a QC.
1981-82 Chaired board of inquiry into corruption on Richmond City Council.
1982-88 Appointed Justice of the Supreme Court of Victoria.
1988 Appointed Chief Justice of the Family Court of Australia.
1992 Made an Officer of the Order of Australia.
July 2002 Announces intention to retire in March 2004.
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