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Courting respect - New Family Court Chief Justice Diana Bryant

Cover Story

Cite as: (2004) 78(8) LIJ, p. 18

Diana Bryant's legal career has been characterised by outstanding results gained through hard work and a willingness to lead. As the new Family Court Chief Justice she will need all these attributes to head the country's most controversial court.

By Jason Silverii

The first Chief Federal Magistrate of the Federal Magistrates Court, Diana Bryant, had to build a court from the ground up.

Not only was there a need to develop processes and procedures, forms and fees, there was also the appointment of magistrates, the employment of Court staff and the finding of appropriate lodgings.

Now the new Family Court Chief Justice, Ms Bryant will have to do more building. But this time it will take the form of renovating the way the public and the legal profession view the Court.

According to Chief Justice Bryant, who began her appointment on 5 July, her greatest challenge as the third Chief Justice of the Family Court will be to achieve more respect for the Court.

Speaking at a press conference after her swearing-in on 8 July, Chief Justice Bryant said it was distressing to see a public institution without the respect of the public.

“If at the end of my tenure I could improve the understanding of the Court and have the respect of the public for the Court, that would be something I’d be very proud of,” she said.

“I know that the family law decisions are difficult [and] I know that you can’t expect people to be happy with what happens in decisions in the Family Court.

“But I really would like to see the institution have a bit more respect and understanding.”

Chief Justice Bryant inherits a Court beleaguered by years of public attacks from politicians and disaffected parents, loss of jurisdiction to the Federal Magistrates Court and the possible arrival of another jurisdictional competitor in the form of a Families Tribunal.

The Court is also without its vocal leader of the past 16 years, Alastair Nicholson, who divided the community between those who revered or reviled him for fighting public battles on issues affecting both the Court and Australian society.

While her predecessor divided opinion, Chief Justice Bryant has made it clear that her style of leadership is different.

“It isn’t my natural inclination to beoutspoken. I think it’s always important to remember that 50 per cent of litigants are men and 50 per cent of litigants are women and ... one has to be very sensitive to making comments which might make one or other of those groups perceive the Court to be biased.”

She hopes this style of leadership will mend the Court’s relationship with the federal government, which she describes as being not as strong as it could be.

However, for those who believe that a low profile leader was a government-imposed prerequisite for the job, Chief Justice Bryant has made it clear that she has come to the position “with absolutely no riding instructions at all”.

Announcing the appointment on 24 June, federal Attorney-General Philip Ruddock said that Chief Justice Bryant had gained a reputation as an extremely capable judicial officer and administrator during her four-year tenure as Chief Federal Magistrate.

“Thanks in no small part to Ms Bryant’s outstanding leadership, the Federal Magistrates Court is making an extremely valuable contribution to an improved federal civil justice system,” Mr Ruddock said.

Federal Shadow Attorney-General Nicola Roxon said she was pleased that such an experienced and well-regarded practitioner would lead the Court into a crucial time in its history.

“This will require strong leadership and direction, both qualities that Ms Bryant has ably demonstrated during her time at the Federal Magistrates Court.

“I also welcome a capable woman being appointed to head this major federal court.”

These views were echoed by the legal profession. Law Institute president Chris Dale said it was important to have a head of the jurisdiction with a background as a solicitor, barrister and chief of a court.

“She has had a strong history of family law work and I think she will, in her own way, work wonders in bringing that Court together into a more collegiate Court to work in the new era in family law.”

However, praise is momentary. It is now about results.

On the subject of respect, Chief Justice Bryant admitted she was yet to formulate a way to lift the Court in the eyes of the public, except to say that it would involve “an educational process”.

“I think there’s a misconception in the public about what Parliament’s role is in making laws and what the Court’s role is in implementing laws.”

She also raised the possibility of making decisions more accessible, although she admitted anonymity would be a difficult issue to address.

There are other issues relating to both the public and the legal profession that Ms Bryant will have to tackle.

One of the most immediate is the possible establishment of a Families Tribunal, as recommended by the House of Representatives report Every Picture Tells a Story released on 29 December last year.

The report called for the formation of the Tribunal, which could cost as much as $500 million to establish, to handle custody matters without lawyers. The federal government is also considering a lower-cost alternative designed by Sydney University law professor Patrick Parkinson that would offer mediation and counselling to couples before disputes reached the Family Court.

The Australian reported on 5 July that Prime Minister John Howard was leaning towards Professor Parkinson’s plan, while government ministers and backbenchers favour the Families Tribunal.

Chief Justice Bryant was diplomatic when asked about the merits of the Families Tribunal proposal.

“I am waiting with interest as I’m sure everyone else is to see what happens with that. But ... the Court will do whatever role the government requires it to do and legislates for it to do.”

Family lawyers are yet to embrace the concept of a Families Tribunal.

Speaking to the LIJ in March this year, leading family lawyer and Law Institute Family Law Section’s Children and Youth Issues Sub-Committee chair David Edney said it was unclear whether the House of Representatives committee had taken the opportunity to discover how a Families Tribunal could run a case better.

“It doesn’t necessarily follow that having a tribunal of three people which may or may not exclude lawyers is going to better protect people or indeed provide a better outcome.”

He said there was a role for lawyers to help empower people if there were difficulties with language, disabilities or where power imbalances existed within a relationship.

While that is a challenge stemming from government policy, the other major issues the new Chief Justice must face are rooted in Court processes.

One of those issues is the sensitive and efficient handling of cases involving children.

Chief Justice Bryant said one clear finding of the Every Picture Tells a Story report was “that a lot of people are very unhappy about the process as far as children are concerned”.

She said the Family Court’s reform of the way it dealt with children was already underway with the launch by then Chief Justice Nicholson of a pilot program in February this year.

The Children’s Cases Program, which is being piloted in Sydney and Parramatta, shifts the hearing of the case away from the traditional adversarial system. It aims to shorten cases and to make them less combative.

The program requires one Family Court judge to be in charge of the case and to play a leading role in its conduct.

The judge has the power to decide the issues to be determined, the evidence that is called, the way the evidence is received and the manner in which the hearing is conducted. It will also be open to the judge to use mediation techniques to determine the case.

Speaking alongside Chief Justice Bryant at the 8 July press conference, Family Court Deputy Chief Justice John Faulks said early indications were that the program was successful.

Deputy Chief Justice Faulks, who was a Family Court justice, was appointed on 24 June as the Court’s first Deputy Chief Justice since 1998.

He said the program was a logical evolution of the way litigation should be conducted, with lawyers facilitating a resolution to the dispute rather than championing one side over the other.

“It’s a really important thing for children because it’s one thing to allow people to tear each apart about property and financial things. It’s another altogether, when there are children involved, to see the tragedy of people spending a long time and a very bitter process in trying to resolve what are fundamentally heart-wrenching disputes.”

There is also the issue of the Family Court working cooperatively with the Federal Magistrates Court and the state and territory Children’s Courts to efficiently deal with cases involving children. Chief Justice Bryant said it was important for the federal jurisdictions to work closely with state courts and to understand their different functions.

“The Family Court doesn’t have an investigative arm to go out and find out about child abuse and children at risk.

“The Family Court’s role is to determine a dispute between two parents about a child.

“But absolutely there does need to be cooperation. I know very well the president of the Children’s Court [Judge Jennifer Coate] and I’m sure we’ll work closely together to see that that happens.”

Judge Coate told the LIJ that she had already had discussions this year with Chief Justice Bryant when she was at the Federal Magistrates Court about the federal and state courts working better together.

Judge Coate was confident those discussions would continue and would be enhanced by Chief Justice Bryant’s appointment.

She said she had spoken with the new Chief Justice about the formation of a working party to address a number of issues about the transfer of matters between the Courts.

One of these issues relates to child protection application cases in the Children’s Court. When the Department of Human Services withdraws a child protection application in a case that still has custody and access issues – the domain of the Family Court – there is no way to transfer the case.

The same applies for cases that need to be transferred from the Family Court to the Children’s Court. The Courts do not share common terms or copies of orders and do not have access to each other’s computer systems.

Judge Coate said the main reason these problems have been so intractable has been constitutional hurdles caused by the federal/ state structure.

“It tends to mean that governments of the day tend to lose momentum fairly quickly once they hit these knotty legal issues.”

Chief Justice Bryant, who will be based in Melbourne, said she would also examine the relationship between the Family Court and the Federal Magistrates Court.

She said she wanted to examine the processes shared by the two Courts with a view to improving them for family law cases.

“But sometimes [the problems] are to do with funding, sometimes it’s to do with processes, sometimes it’s to do with both. It’s early days for me.

“I want to have a look at the process and try to do better with what we’ve got.”

Another long-term problem for the Family Court has been the increasing presence of unrepresented litigants. According to the Court, about 40 per cent of cases before it contain at least one unrepresented litigant.

Chief Justice Bryant said unrepresented litigants was an issue for all courts, not just the Family Court.

She said that while she enjoyed presiding on cases involving unrepresented litigants and helping them through the process, she was aware that not everyone could act for themselves.

“There are lots of times and circumstances in which you can’t do the best job when people are representing themselves.

“I think it’s time that the Court has to look at different ways of doing things.”

She said the impact of federal legal aid being used only for federal legal issues and its impact on the level of unrepresented litigants was a matter for government.

“I suppose that we don’t live in a perfect world and I guess we have to accept, to some extent ... that not everybody is going to have access to legal aid and not everybody is going to have access to funds and there will be self-represented litigants.

“We have to find good ways of dealing with them in the process.”

The Family Court’s procedures were put under the microscope during the two-year rewrite of the Family Law Rules, which were introduced in March this year.

Then Chief Justice Nicholson said the changes to the Rules was “among the most exciting” initiative in his tenure because “they will make it easier for clients and litigants to deal with the Court”.

Among the changes were the simplification of language and a slashing of the number of forms from 85 to 24.

The payment of costs for non-compliance with certain rules, such as late lodgment of documents, was also introduced.

The overlapping of jurisdiction with the Federal Magistrates Court meant the Rules also applied to that Court. However, then Chief Federal Magistrate Bryant did not introduce all the Rules into her Court because they did not fit the “cheaper, faster, easier” mantra of the Court.

Chief Justice Bryant said there would be an evaluation of the Rules.

She said feedback from the legal profession had produced both positive and negative comments.

Law Institute Family Law Section chair Rose Lockie said many practitioners felt the Rules complicated family law and made it more expensive.

Marshalls & Dent partner and family law practitioner Peter Szabo has been an outspoken critic of aspects of the new Rules, especially the provisions regarding awarding costs for non-compliance.

Mr Szabo said that this provision was a case of using “a sledgehammer to crack a nut”.

“The import of some of the Rules seems to be pushing for a more adversarial approach in relation to document-filing costs,” Mr Szabo said.

“This disturbing trend can hopefully be ameliorated by the new Chief Justice.”

Chief Justice Bryant made it clear at her press conference that she had no concrete plans as yet to tackle any of these problems.

With no plans for the future yet to dissect, it falls to the past to give an insight into how Chief Justice Bryant may tackle these problems.

Chief Justice Bryant, who turns 57 in October, was educated at Firbank Anglican School in Brighton and studied law at the University of Melbourne, graduating in 1969. She was admitted to practice in Victoria the next year.

In 1977, she moved to the Perth office of Phillips Fox where she became a partner practising in family law.

Chief Justice Bryant helped build Phillips Fox’s family law practice into one of the biggest in Australia. However, the firm disbanded the family law practice soon after she left the firm to go to the Bar in 1990.

Mr Szabo, who was a partner at Phillips Fox in Melbourne when Chief Justice Bryant was a partner at Phillips Fox in Perth, said Chief Justice Bryant was “an absolute whirlwind, always has been and always will be”.

“She was a real marketer, a real entrepreneur, a go-getter. She never stays still and is very hard to nail down.”

Mr Szabo said she was always more than willing to help and compare notes with fellow partners.

During her time at Phillips Fox, Chief Justice Bryant was also a director of Australian Airlines from 1984 to 1989, commissioner of the West Australian Legal Aid Commission and president of the Family Law Practitioners Association of WA.

She returned to Victoria in 1990 to become a family law barrister and continued her leadership role among family law practitioners both at a state and federal level.

Between 1990 and 2000, Chief Justice Bryant became a member of the Victorian Bar Council, vice-chair of the Victorian Family Law Bar Association, a director of Victoria Legal Aid and a member of the Bar’s Ethics Committee.

She helped set up Chancery Chambers in 1997, the same year she took silk.

She also became a national executive member of the Law Council of Australia’s (LCA) Family Law Section and assistant editor of the section’s publication Australian Family Lawyer.

Despite all this, Chief Justice Bryant also managed to complete a Master of Laws from Monash University in 1999.

It was in her capacity as an executive member of the LCA’s Family Law Section in the late 1990s that she argued against the formation of a Federal Magistrates Court – a court she was appointed to lead in 2000.

She told the LIJ in March 2000 that she had no problem reconciling her original point of view with her acceptance of the role.

“Lawyers understand perfectly well that you take a brief for one side and you argue that brief, and the next day you’ve got a brief for the other side.

“I argued for that position and that position was lost. That’s the end of it.”

As Chief Federal Magistrate, she had to build a Court against the resistance of legal bodies such as the LCA and the Law Institute as well as then Family Court Chief Justice Nicholson.

Despite this, Chief Justice Bryant managed to establish and eventually expand the resources and jurisdiction of the Federal Magistrates Court and, in turn, put to rest any doubts about the need for such a court.

She admits it is far different to build new structures than to come into an existing organisation with long-standing processes.

“But I think that from what I can see everyone in the Court is very enthusiastic for us to start a fresh stage and a fresh era ...”

Chief Justice Bryant becomes only the second woman to head a federal jurisdiction along with Elizabeth Evatt, who was appointed as the first Family Court Chief Justice in 1975.

She said her legal career to this point has been satisfying because it has meant working to help people.

“It’s not about working with companies and so forth, it’s people and their problems.

“I guess I like people and that’s why I’ve always enjoyed it and that’s why I’m passionate about it.”

It is this passion, combined with an impressive track record, that has raised hopes within the legal profession of a new era for the Family Court.

Jason Silverii

The career of Diana Bryant

  • Born 13 October 1947.
  • Graduated from the University of Melbourne in 1969.
  • Admitted to practice in 1970.
  • Became a partner at Phillips Fox in Perth in 1977.
  • Director of Australian Airlines 1984-89.
  • Joined the Victorian Bar in 1990.
  • Appointed QC in 1997.
  • Helped establish Chancery Chambers in 1997.
  • Completed a Master of Laws from Monash University in 1999.
  • Appointed the inaugural Chief Federal Magistrate in 2000.
  • Appointed Family Court Chief Justice in July 2004.

John Pascoe appointed Chief Federal Magistrate

Solicitor, academic and business leader John Pascoe has been appointed Chief Federal Magistrate of the Federal Magistrates Court, replacing new Family Court Chief Justice Diana Bryant.

Federal Attorney-General Philip Ruddock announced on 24 June that Mr Pascoe, managing director of Phillips Fox’s national insurance and risk management division, would take up the position on 14 July.

“He is a highly regarded lawyer with a distinguished career and strong record of achievement in law, business and corporate governance,” Mr Ruddock said.

At the time of the appointment, Mr Pascoe was deputy chancellor of the University of NSW and chair of Centrelink.

He also held the positions of non-executive chair of food manufacturer George Weston Foods Limited and chair of financial services group Sealcorp Holdings Limited.

Mr Pascoe went on leave immediately following the appointment and was not available for comment at the time of writing.

Law Institute president Chris Dale welcomed the appointment, saying Mr Pascoe would bring a more commercial aspect to the job.

On the same day as the announcement of Mr Pascoe’s appointment, Mr Ruddock also announced the appointment of eight new federal magistrates.

Two of them – former solicitor and barrister Daniel O’Dwyer and barrister Gareth Riethmuller – will sit in Melbourne. Four will be based in Sydney and the remainder in Parramatta.

The eight new federal magistrates will take up their positions between July and September this year.

Mr Ruddock told the Australian Financial Review on 9 July that the appointment of extra federal magistrates stemmed from government concern over the dramatic rise in migration applications filed in the Court.

Migration applications rose from 182 in 2001/02 to 1397 in 2002/03.

“I am confident the additional magistrates will break the back of the huge backlog of cases that exists,” Mr Ruddock said.

Concluding a flood of new appointments, Mr Ruddock announced that Family Court Justice John Faulks would become the Court’s Deputy Chief Justice, a position that has not been filled since 1998.

Like Chief Justice Bryant and Chief Federal Magistrate Pascoe, Justice Faulks worked at Phillips Fox in the firm’s now-disbanded family law practice.

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