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Retiring but not shy


Cite as: (2004) 78(4) LIJ, p.22

Family Court Chief Justice Alastair Nicholson has been a strong defender of his Court during his 16 years in charge. As he approaches retirement, the Chief Justice still has much to say.

In an era in which the debate over publicly defending the courts has focused on who should say what, one head of jurisdiction has ignored convention and niceties to become an imposing defender of his Court.

Family Court Chief Justice Alastair Nicholson has taken on governments at all levels and of all political persuasions in the name of advancing the interests of his Court.

It has, he admits, got him into some trouble with some of those that wield power.

But as he reflects on his 16-year career as head of the Family Court, the Chief Justice regrets not one public word.

“I came to the Court when it was fairly dispirited and I took the view that we should go upfront a lot more.

“I have not hesitated to respond publicly to criticisms of the Court and to make my own from time to time.

“That was a deliberate choice because it seemed like we were sitting back and getting kicked at that stage and it didn’t seem to me to be the approach that the Chief Justice ought to take to allow that to continue.”

Chief Justices, he said, should not “retreat behind the wall of silence all the time”.

When the LIJ interviewed Chief Justice Nicholson on 26 February he was a little over a month away from his last sitting on 2 April in the Court he has led since 1988.

Then he will take leave until his official final day on 2 July.

At the time of writing, the federal government had not announced Chief Justice Nicholson’s replacement.

But any suggestion that he is cruising into the still waters of retirement is shattered by the papers strewn over his desk and the travel luggage waiting, handle extended, to be taken to Sydney.

It is also quickly apparent that he has lost none of his pugnacious nature.

In a wide-ranging interview marking his retirement at age 65, Chief Justice Nicholson spoke openly about the policies of the current federal government, the level of debate in Australia on crucial social issues and the change in what constitutes a family.

He said the Family Court was in a “pretty bad way” when he took over in 1988 from Chief Justice Elizabeth Evatt. It had been heavily criticised by the High Court, its funding was “hopeless” and the administration “non-existent”.

Chief Justice Nicholson said matters improved when the then Labor federal government gave control of the budget and administration to the Court.

That freedom, he said, had now been impinged on by the current federal government, which he described as obstructive in relation to issues such as the appointment of judges.

“The really annoying feature is that the government recently didn’t replace a judge in Melbourne and Adelaide.

“The Federal Magistrates Court is not taking over that part of the Court’s work and this government has been particularly bad in terms of delays in making appointments.

“Where it does make an appointment you might wait 18 months and, of course, what they don’t seem to realise is that if you can’t list cases before a judge, it’s not just those cases that don’t get on, there’s a whole lot of others.”

He describes this obstruction as one of “the real frustrations of this job”.

“It’s part of the job I won’t miss, this constant struggle with people who really don’t understand what the problems are and don’t make much effort to try and find out.”

A spokesman for federal Attorney-General Philip Ruddock said the government was not obstructive, but instead was conscious of the need to place new appointments in the busiest registries.

This resulted on some occasions in federal magistrates being appointed in place of a Family Court judge.

“There is a delay in replacing judges, but it is not the case of them necessarily being appointed to the same registry and they are not necessarily being appointed as judges,” the spokesman said.

As well as being a strong advocate for his Court, Chief Justice Nicholson has been an intelligent and provocative commentator on social issues.

It is therefore troubling to hear him say that the level of public debate on issues such as the treatment of asylum seekers was at an extremely low level.

As an example, he points to the debate over the October 2001 “Children overboard” case, in which the federal government falsely claimed that asylum seekers in a boat had thrown their children overboard when intercepted by the HMAS Adelaide.

“It was manipulated politically, but it showed up one of the more shameful aspects of Australian history.

“We don’t seem to even look at the moral human rights aspects of these issues. I think there’s a bit of cyclical thing about this.

“We have been going through a very economically driven, selfish approach to public issues and I think that’s probably started with Margaret Thatcher and continued over the past 20 years or so.”

He has also been disappointed at the way governments in Australia have “ridden roughshod” over the United Nations Convention on the Rights of the Child, which Australia helped draft.

This lack of debate has masked a critical shift in values in Australia, typified by the change in how a family should be defined.

The Family Court has played a key part in this shift through decisions involving such issues as artificial insemination.

Chief Justice Nicholson said the current notion of a family in modern Australian society being made up of “mum, dad and the kids” was wrong.

He pointed to the fact that 40 per cent of marriages ended in divorce and 30 per cent of children were born outside of marriage. Then there was the growing number of same-sex couples.

He said the law had not caught up with these changes in what constituted a family.

“What happens is that when you are in a conservative cycle people in effect try to force you back [to that traditional notion].

“You’ve got politicians, [US president] George W Bush being one of them, saying that marriage should be enshrined in the constitution as a union between man and woman.”

Chief Justice Nicholson’s views are strong and are crafted out of the experience of leading the country’s busiest and most scrutinised court.

Being criticised and scrutinised is all part of being part of a Family Court, he said.

“It is the nature of the beast actually. If you go to any other country you’ll find the same thing.”

He said it was what came from dealing with emotional issues such as children and property where inevitably there were going to be people unhappy with the result.

“What they tend to do is instead of going to the Appeal Court they go to the ‘Court of Appeal’ in Canberra – the politicians.

“The politicians then get an overload of people complaining about the system and they think there must be something wrong with it. They do nothing and then you’ll have a great flurry.”

If these thoughts give the impression of a person bitter with the experience of public life, then that would be a false impression.

Chief Justice Nicholson is a gentle and thoughtful man who has been fiercely dedicated to improving his Court.

Despite there being only weeks left in his tenure at the time of the interview, Chief Justice Nicholson was still working hard to implement two major initiatives.

One was a major rewrite of the Family Court Rules.

The rewrite was designed to make the Court more accessible. For example, the new Rules will cut the number of court forms from 85 to 21.

It is a necessary adjustment for a court in which about 40 per cent of cases have at least one self-represented litigant.

The second initiative could have long-lasting implications for the Family Court.

The Children’s Cases Program, which began on 1 March, takes a less adversarial approach to cases.

The pilot program, which evolved from research into the way family courts in Europe did their work, involves the judge deciding the issues to be determined, what evidence will be called and how it will be called. The program also allows the presiding judge to use mediation to determine a case.

With Chief Justice Nicholson still resolutely looking forward, it is difficult to get him to look back at his achievements.

His proudest achievement is the building of a closer relationship between the Court and indigenous communities.

This has been done through such initiatives as a network of Aboriginal Family Consultants and the development of a method of providing legal recognition for traditional adoption in Torres Strait Island communities.

He admits that while it was not the most spectacular or high-profile initiative implemented during his 16 years, it has been the most rewarding.

He said he was also satisfied with the knowledge that the Court was now in a stronger position than it was in 1988.

When asked what his plans were in retirement, this normally effusive man dropped his voice to a whisper.

He said his plans were vague, although he would be involved in organising a world congress on family law and children’s rights in Cape Town, South Africa next year and would do work for local charities.

Laughing, he said there is one thing he knows he won’t be doing.

“I am certainly not going out mediating family disputes.”

Alastair Bothwick Nicholson AO RFD

  • Born 19 August 1938.
  • Educated at Scotch College and Melbourne University.
  • Signed the roll of counsel of the Victorian Bar in 1963.
  • Became Queen’s Counsel in 1979.
  • Appointed by the Victorian government to conduct a public inquiry into the Richmond City Council in 1981.
  • Appointed a Justice of the Supreme Court of Victoria in 1982.
  • Appointed deputy chairman of the Adult Parole Board in 1982.
  • Appointed Chief Justice of the Family Court of Australia in 1988.
  • Appointed a Justice of the Federal Court of Australia in 1988.
  • Appointed Judge Advocate-General of the Australian Defence Force in 1987, for a five-year period, expiring 1992. His Honour holds the rank of Air Vice-Marshal.
  • He is a former president of the International Association of Family and Conciliation Courts.

Jason Silverii

A tribute to a modern judge

High Court Justice Michael Kirby believes Family Court Chief Justice Alastair Nicholson will be remembered by both supporters and critics as an excellent jurist and leader.

I do not think of Chief Justice Alastair Nicholson specifically as an expert in family law, although that he surely is. His training at the Bar, his initial appointment to the Supreme Court of Victoria and his commission in the Federal Court of Australia demonstrate that he is a fine lawyer of broad and general training and experience.

This background has served him well as Chief Justice in steering the Family Court of Australia through a difficult period and in presiding in the Full Court and writing leading opinions. These have been relevant to family law but also important for property and administrative law, the law governing children and legislation relating to the growing impact of international law on Australian law.

Some lawyers look down on family law. I do not, and it is a mark of the vision and understanding of Chief Justice Nicholson that he did not.

He saw, as most ordinary citizens do, that this is one of the most important areas of the law, affecting more citizens than most others.

He also understood that it is a field of law at once intellectually demanding and emotionally taxing.

On the relatively rare occasions that the High Court of Australia hears an appeal on issues of family law, the justices get an insight into the difficulties with which judges of the Family Court must grapple every day.

The divisions of opinion in the High Court in many such cases demonstrate the strong arguability of many of the issues in contest.

Presiding over the Family Court, and the many appeals within it, takes a rare gift of intellectual and personal leadership.

The nation, not just the Family Court of Australia, is greatly indebted to Chief Justice Nicholson for his estimable service over so many years.

There is one aspect of his intellectual leadership I would wish to single out. I refer to his perception of the growing importance of international law for the development of Australian law.

For lawyers of Chief Justice Nicholson’s generation this is truly a new idea. Those lawyers were raised in a legal system that treated most international law as irrelevant to their endeavours.

The legal mind, once fixed in its ways, is usually difficult to rescue from ideas learned in youth.

Chief Justice Nicholson immediately saw the inevitability of the influence of international law on the field of family law, stimulated by its universal features.

To some extent this perception was doubtless influenced by the fact that many areas of family law today are influenced by international law expressly incorporated into domestic law (as in the International Child Abduction Convention). In other respects it has been influenced by broad principles of human rights not expressly incorporated, such as those stated in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

In many of these perceptions Chief Justice Nicholson has been prescient.

In the past two years the US Supreme Court has embraced a similar use of international law, specifically in relation to the international law of human rights: Atkins v Virginia 536 US 304 (2002) and Lawrence v Texas 123 S Ct 2435 (2003).

In my view, Australian law will, in due course, accept a similar approach. When that happens, Chief Justice Nicholson will be honoured as an early herald of a great change in Australian legal doctrine.

To critics, Alastair Nicholson has been open-minded and attentive.

To would-be bullies, he has been firm and unyielding.

To litigants, he has been courteous.

To the Bar, he has been patient and painstaking.

To his friends, he has been loyal and supportive.

To Lauris, his wife of four decades with whom he will now spend more time, and to his family, he has been a loving husband, father and guide.

To the people of Australia, he has been an example of a forthright, independent, modern judge.

I salute his achievements and his service.

High Court Justice Michael Kirby

Justice Kirby will deliver a valedictory address to mark the retirement of Chief Justice Nicholson on Thursday, 15 April at the Melbourne University Law School. For more information, contact Anjela Palmaras on 8344 6194.


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