Alastair Nicholson on the family law system

Alastair Nicholson, former Chief Justice of the Family Court of Australia, was interviewed on the ABC’s Lateline program last week. The interview focused on the Commonwealth government’s upcoming review of the family law system. It contains a number of comments relevant to the role of family mediation.

For example, Nicholson identifies the adversarial nature of litigation as one of the main challenges facing the family law process:

[W]e should be moving to a much more, a much less rather, adversarial system because it seems to me that the traditional adversary system is really not suited to family law … [M]uch of the proceedings in the court are adversarial and people who want to litigate, or are encouraged to litigate by some unscrupulous representation can actually jam the system.

Although Nicholson does not think it would be helpful to ‘get lawyers out of the system entirely’, he emphasises that more needs to be done to involve people in their own disputes and address power imbalances:

I mean, there are moments in cases where the adversarial system works, but usually there is an imbalance of power in family law cases. … It’s the people who have got the deep pockets that can afford the adversarial litigation but it just doesn’t work, I believe, in family situations.

A partial solution to these issues, Nicholson suggests, is to reform the court process to prevent aggressive questioning by perpetrators of family violence and encourage judges to play a more active role in prioritising children:

So, [in the German system] they get the children’s point of view right from the start and then the whole proceeding goes through, with social workers assisting … The fact is that I think it’s a much more responsive system than ours, and it is one that we could well copy.

Nicholson also recognises the important role of mediation, particularly in making the process less expensive for the parties:

[T]here is now much more room for mediation, which was a criticism of the system in the past. … [T]he other way to make it less expensive is to resolve the issues as soon as you can. … Once you start getting into litigation and once you start coming to court, it’s going to be expensive.

Family mediation has much to offer in addressing the problems of adversarialism and cost that Nicholson identifies, as well as managing power imbalances and helping to ensure a child-focused outlook. Hopefully, the government’s review of the family law system will acknowledge and support this potential.

The full interview can be accessed here: http://www.abc.net.au/lateline/interview:-alastair-nicholson,-former-family-court/8999010.

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About Jonathan Crowe

Jonathan Crowe is Professor of Law at Bond University. His research explores the philosophical relationship between law and ethics, looking at issues such as the nature and foundations of legal obligation and the role of ethics in legal reasoning.

One thought on “Alastair Nicholson on the family law system

  1. I applaud the sentiments of the Honourable Former Chief Justice and thank Jonathan Crowe for bringing them to our attention. It is surprising that this message has been broadcast so regularly and so persistently over the years since 1975 and with such little effect. If memory serves me correctly, it was Nicholson J, as Chief Justice of the Family Court who, on 19th March, 2004, introduced the Family Law Rules with an address which included the following:

    “Under these rules, parties and their lawyers are required to make a genuine attempt to resolve the matter before starting hearings. If they fail to do so they may be liable to pay the costs of the other parties. Good family lawyers do this as a matter of course but the purpose of the Rules is to make sure that all do so.”

    Despite this admonition, the adversarial zeal of some family law practitioners seems to have continued unabated and the hope that all will comply with the Rules mandating family law mediation remains aspirational. It is to be hoped that the much anticipated review of the current legislation may bring not only a strengthening of the statutory framework but an enthusiasm for a shift in the culture which underpins current practice so that there may be a change not only of the rules but also of the practice which governs the way we deal with these problems.

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