The Honourable Alastair Nicholson, AO RFD QC 

Alastair was admitted as a barrister and solicitor of the Supreme Court of Victoria in 1961 and signed the roll of Counsel of the Victorian Bar in 1963. He was appointed Queen’s Counsel in 1979, a Justice of the Supreme Court of Victoria from 1982-88, and the Chief Justice of the Family Court of Australia and a Justice of the Federal Court of Australia from 1988 until his retirement in 2004.

EXCERPTS FROM OUR FOREWORD

This book consists of a series of moving accounts by mothers, outlining appalling misuse of our family law system; legal incompetence and rapacity; insensitive case management; bureaucratic obstruction and delay; and an inability to recognise or control the activities of manipulative litigants—their former male partners—resulting in the tragic consequence of being permanently cut off from their children. Regrettably, the same stories could be told by a similar group of fathers.

As a former Chief Justice of the Family Court of Australia, this appals me. I recognise that family law is a fraught jurisdiction, where some behave terribly towards their former partners, but despite the best efforts of those managing the system, this will always happen. However, what should not happen is that the system contributes to the problem, as these accounts demonstrate it does.

Why have we reached this situation? There are many reasons and the following is a brief outline. First, I will describe the system that the Family Law Act (1975) replaced, because it is not often appreciated how bad it was. It was based upon the principles of the nineteenth century English Matrimonial Causes Act (1959), where findings of matrimonial fault, such as adultery and desertion, determined who was entitled to a divorce and the outcome of custody, access, and property settlement. It was administered by State Supreme Courts. The law differed to some extent in each Australian state and territory until 1959, when the Commonwealth Matrimonial Causes Act was passed. It made divorce law uniform throughout Australia and introduced a no-fault ground of separation, where parties had been separated for five years. Fault-based grounds such as adultery and desertion were also still available. The law remained productive of enormous injustice to parties and children, made worse by the very limited availability of legal aid. This effectively excluded much of the population, including most women, from access to the law.

The Family Law Act (1975) and the Family Court of Australia

Early years of the Family Court

Renovation of the Family Court 1988-9

Requirements for a Successful Family Court

The Howard (Liberal National Party) Government 1996

The Federal Magistrate’s Court (renamed the Federal Circuit Court)

Reductions in Legal Aid

Conclusions

Finally, there is another serious problem that will not go away, which is that child protection remains the province of the states and territories. The evils of this approach are graphically demonstrated in the case of “Sally” that is discussed in the book. It is an absurdity that different child protection regimes operate in different states and territories, or that Children’s Court determinations override those of Federal Courts. Curiously, no effort has been made by any Federal or State and Territory Government to address this issue, despite the obvious difficulties created by this situation. An obvious solution would be for the states and territories to cede child protection jurisdiction to the Commonwealth to enable a national system of child protection to be developed within the family law system. This is not a novel approach and has been used with great effect in New Zealand. It is more than time that we followed them.

This book is a significant indictment of the effect that poor decision making by successive governments has had and is an important contribution to the ongoing family law debate.

The Honourable Alastair Nicholson, AO RFD QC

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