The Age

The Family Court provides fair access to all

July 19 2002
The Age (Melbourne)
Letter to the Editor by Alastair Nicholson, Chief Justice of the Family Court of Australia

It would be easy simply to ignore Bettina Arndt's article ("Nicholson's dark legacy: a court that failed men", on this page on Wednesday), given how inaccurate and misleading it is. But I am concerned that readers might take comments in the article as fact, and that the picture painted by Arndt be construed as a true reflection of the Family Court and how it functions. To do so would be dangerous and wrong.

I say that because family breakdown is stressful enough, but for those people who do not resolve outstanding issues and take the court route, the stress is even greater. For litigants to enter one of our courts in the mistaken belief that they will not receive a fair deal, and that the judge will be biased or prejudiced because of their gender, would surely make things worse.

Contrary to Arndt's distorted view of the court, less than 6 per cent of parents who apply for parenting orders actually proceed to a defended hearing before a judge. Most resolve their disputes privately, with the assistance of lawyers or court or community-based mediation services.

Especially puzzling is the fact that - as she rightly points out - Arndt was a member of the Family Law Pathways Advisory Group and yet she still makes assertions that are demonstrably untrue. It is of particular concern that she has completely misconstrued the Pathways findings. Her comments in relation to the joint Sydney University-Family Court research paper is a good example of her lack of balance.

There are indeed a few men's groups that can rightly be described as "dysfunctional, strident, unrepresentative and often irrational".

For example, the Blackshirts - men who stalk women and wear black masks and uniforms - are fairly described in this way.

But this is not a description I would use of those men's groups that genuinely feel aggrieved and wish to seek redress for their perceived injustices. They have an absolute right in a democratic society to bring to the court's attention those issues about which they feel so strongly. The court has an appeal system and does listen to men and women who feel decisions are unfair and wrong.

In the previous sentence, I mentioned women and this raises a very interesting issue, for there are women who feel aggrieved because their former husbands have residence of their children and believe that the court is misguided in its decisions. Indeed, the very nature of the court's work makes it very difficult to achieve an outcome, via litigation or some other form of intervention, which is totally acceptable to both parties. Understandably, human nature sees such issues in emotive terms in this very emotive area of the law.

The Family Court will make orders that give children as much contact as possible with both parents, but only when it is appropriate and safe to do so. It must always be satisfied such an outcome will be in the best interests of the children concerned - another point Arndt fails to acknowledge.

A decision that a child should not have contact with a parent, be it mother or father, is never taken lightly and always based on reasons that are difficult and complex.

The same applies to residence orders. The fact is that we do live in a society where the mother is the primary care-giver in most intact marriages. It is therefore not surprising that parents are most likely to decide that mothers should retain that primary responsibility after separation when they negotiate their own parenting arrangements. In the much smaller group of litigated cases, it is also not surprising that judges will choose an environment that provides the greatest continuity and least disruption for children.

The issue of legal aid is, of course, a matter for government. It is ironical that Arndt should criticise me about legal aid, given the criticism I have received over the years for trying to explain the impacts that cuts in legal aid have had on families in dispute.

It is a tragedy indeed that 40 per cent of our litigants are self-represented. There are many men among that percentage who are unrepresented, and I am equally concerned about the injustice they face in not having legal representation in court.

Compliance with contact orders is an issue that bedevils family law systems across the family law world. Readers of Arndt's article would be excused for concluding that the Family Court of Australia is the only forum that struggles to provide solutions to the many problems facing separating families.

They would also be surprised to know that the court has an international reputation for being innovative, responsive - and even-handed.

Alastair Nicholson is chief justice of the Family Court of Australia.

Copyright 2002 The Age Company Ltd.