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Family Court Chief's next act

Family Court Chief's next act

By Carolyn Ford

Family Court Legal Biography 

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After 13 years in the legal hot seat Chief Justice Diana Bryant is moving on.

At one minute to midnight on 12 October, Diana Bryant steps down as Chief Justice of the Family Court of Australia.

She will be at The Hague in the Netherlands on official business. In the days and weeks after, there will be loose ends to tidy up. But officially, as the law requires of Australian judicial officers turning 70, the tenure of Diana Bryant, judge, ends and life as Diana Bryant, private citizen, begins.

The judge is, she admits, ready to go, having felt “the weight of the world” on her shoulders leading a court with its share of detractors through a period of financial austerity for legal services and great administrative, technological and social change.

“I do feel as if I’ve had the weight of the world on my shoulders,” Chief Justice Bryant told the LIJ.

“I’ve got used to that. But I do feel responsible for a lot. At times I’ve been given responsibility for things I didn’t feel I was responsible for.

“Criticisms of the court and staff concern me and how to best deal with that.”

And then there’s “inquiry fatigue”. The Chief Justice is not unhappy she won’t be head of jurisdiction for the upcoming review of the Family Law Act by the Australian Law Reform Commission (ALRC), coming as it does on the heels of 227 recommendations from the Victorian Royal Commission into Family Violence.

“I think it’s a good thing to have a review of the Act and the system. It’s really important. If you were starting with a blank page you wouldn’t have this system. But it’s big and I’m quite relieved I won’t be here. I’ve had an awful lot of inquiries over the period. It will be nice to wake up in the morning and not have to worry about it . . . to leave that to somebody else.

“I’m in favor of having a time when judges have to go . . . particularly for chief justices. It’s probably even more important for heads of jurisdiction because you want renewal. It’s good for the institution to have somebody new come in with a fresh approach.”

Chief Justice Bryant’s parting gift from staff and colleagues – a kayak – provides a clue to the next phase of her life.

Already a keen standing paddle-boarder, Chief Justice Bryant plans to kayak, snow ski, play golf, write, read fiction and, with her GP husband who has been waiting patiently for his wife to join him in retirement, grab the binoculars and go bird-watching.

Fortunately, however, the legal profession is not going to completely lose the warm, hard-working legal trailblazer to bush, bunker and bay.

Chief Justice Bryant will continue her work on multiple committees and working groups, including one on the international child abduction convention. She may do a PhD as part of that research. She is going to be Judge in Residence at the University of Melbourne, her alma mater, in the first semester of 2018, the first family law judge to fill the position. She will continue to train judges on family violence laws and issues. And she is considering making a submission to the ALRC review.

Not your typical retirement then.

“I want to keep doing something . . . not full-time because I want to enjoy life. I appreciate you have to stop and smell the roses and make the most of the time you are fit and healthy. I want to do that but not stop making a contribution immediately because I think I have something to offer in this area.”

Chief Justice Bryant has led the Family Court for 13 years, coming to the role after the Hon Alastair Nicholson in 2004. “Cool head leaps into legal hot seat”, said one newspaper headline on her appointment.

Although new to the Family Court, Chief Justice Bryant was not new to the position having come directly from her role as the inaugural Chief Federal Magistrate of the then Federal Magistrates Court (now Federal Circuit Court of Australia) which she held from 2000-2004 and for which she was awarded a Centenary Medal.

In 2016, on the 40th anniversary of the Family Court, Chief Justice Bryant reflected on changes to family law over four decades, starting with an Act that was only 55 pages long. As a result of these changes, the Family Court is no longer a one-stop shop for marriage breakdown. It deals with increasingly complex cases including surrogacy, family violence, issues arising from blended families and assisted reproductive technologies.

Has she achieved what she wanted to as head of the Family Court? Yes and no.

Yes, in that all judgments are now published, wigs are gone and robes are new, the Court’s 35 judges and other staff have access to the latest child development and neuroscience research, and the standing of the Court is improved.

“I think I did a lot and one of the major things was the publication of judgments. That is probably my greatest legacy. When I came to the Court, it published only the most interesting, jurisprudential decisions. There had never been an ethos of publishing all judgments.

“If people aren’t used to having their judgments published then they don’t have to be quite as rigorous perhaps as they might be. That is understandable. We changed that culture completely, set up a judgments publication office and anonymised judgments [using pseudonyms] so they could be published on AustLii.

“We publish all our judgments, we are completely transparent. We are like any other court and can be scrutinised.”

It helped improve the standing of the Court, which Chief Justice Bryant believes has occurred with the family law sector, the profession generally, stakeholders and the community.

“When I took over there was a lot of fragmentation and views about the Court.

“I think there is now a consensus that the Court is doing its best. It is seen as a superior court doing difficult work in a conventional way within the legal world.

“And our international work has been very important. We are highly regarded and punch above our weight in the international community.”

As for no, there are two regrets – understanding of the Court and its processes by politicians is not consistent, she says, and waiting times for the thousands of couples annually resorting to the courts have not gone down.

“I think we are letting people down. If it’s taking two years to resolve a case, you are letting people down. People deserve to have a hearing earlier, they need to get on with their lives. Children shouldn’t be waiting. In some cases with particularly difficult parents, children can spend half their lives involved in litigation over them.

“There are many people representing themselves. And the longer the case takes to get a final hearing, the more likely it is that people will make interim applications. They often require judge time and that blows out the list even further.

“I have always thought a year to 18 months is about the longest that parties should be waiting. That’s not bad for complex matters that require a lot of evidence to be gathered. We are not meeting that across the board but that’s what I’d like to see.”

Why the wait? Static resourcing, increasing complexity of matters, consideration of family violence are some of the things the Chief Justice explains to federal politicians she speaks to, including those calling for the national Court’s overhaul.

“Politicians don’t understand the work of the Court as much as I would like them to.

“I strongly believe in meeting with politicians, especially those in Senate estimates who raise issues. I have always found that to be a very useful, sensible thing to do.

“When you get a chance to explain what the Court is doing, they get a better understanding. I’ve sat and had a cup of tea with them and let them know about our processes, limitations and what we have in place. It does make a difference to their understanding.

“In recent times I’ve met with Senators Hinch, Xenophon and Hanson with the knowledge of the Attorney-General.

“Most chief justices don’t do that, but most courts don’t get the questions we get at Senate estimates. I have always been prepared to engage with those who have been critical of the Court.

“The Court is still criticised by disaffected litigants. When I took over it was the men’s groups. Now it’s family violence advocates. I suspect you will never really change that. There is always going to be disaffection by some litigants. Social media has made a difference to that, it’s louder.”

Rosie Batty, whose son Luke was murdered by his father in 2014, continues to push for a royal commission into the family law system which she says is “overburdened and underfunded” and fails women and children experiencing domestic violence.

Family violence “has and is” fundamentally changing how the Family Court operates, Chief Justice Bryant says. Addressing it – and accommodating some of the issues arising from the Victorian Royal Commission’s 227 recommendations – is a work in progress that needs careful evaluation – cross-examination of vulnerable witnesses, for example. The federal government has a draft Bill on cross-examination by or of vulnerable witnesses.

“The main issue around that is the question of who should cross-examine if not the parent? . . . [and] if the government isn’t going to fund legal aid to do it, who is going to do it? That’s the main debate and rightly so.

“People are tending to forget we are a court at the end of the day. There is an assumption with some of the more radical voices that the allegations [of family violence] are true and don’t need to be tested and shouldn’t be tested.

“Courts deal with matters where the facts are contested. We do have to make findings of fact before you can decide what’s in the best interest of children. That’s tending to be forgotten in the discussion.

“People forget that in family law there is a broad spectrum of issues that require cross-examination, not just family violence.

“There’s property settlement or a father might want to cross-examine about the mother’s new partner who might have a conviction for child sex offences. These are valid questions to be asked. The challenge is finding the person who can adequately do that. Ideally a lawyer . . . it is much more fraught than people understand.”

Cross-examination of vulnerable witnesses is just one aspect of the family law system now under the microscope. In December 2016 the Attorney-General George Brandis announced that Part VII of the Family Law Act (determination of child’s best interests) will be reviewed. Since then, Prime Minister Malcolm Turnbull announced the government’s intention to change the law to criminalise breaches of personal protection injunctions made by family law courts. Liberal MP Sarah Henderson is chairing a federal parliamentary inquiry into creating a family law system more responsive to family violence, and the ALRC is due to release terms of reference for its review of the 1975 Family Law Act – the most comprehensive review of the Act in its 40-year history. The ALRC will report in May 2019.

Funding, or lack of, is a constant for courts and the Family Court is no exception. Chief Justice Bryant acknowledges more judges is an expensive option for government but is pleased the most recent federal budget allowed for 17 more family consultants across the Family Court, the Federal Circuit Court and the Family Court of WA, a trial of three new registrars to triage workflow, and other family violence projects.

“Clearly governments of all complexions are trying to get people to resolve disputes without having to come to the pointy end, which is the Court. They want to put their money at the front end.”

It is vital to provide systemic support via registrars and family consultants so judges only do cases that are beyond mediation, she says. With more help, cases awaiting a hearing can be removed from the system and wait times come down correspondingly.

Whatever is achieved will be done under a new chief justice within new administrative arrangements. In 2016 the corporate services functions of the Family Court, Federal Court and Federal Circuit Court merged, yet each holds a distinct statutory identity.

“It’s a different role to the one when I took over. Everybody has their own style, and has got to find their own way. Everybody brings something different. And that will happen.

“I’ve been really lucky, I’ve had a really interesting career, loved it. I’ve had the opportunity to do all sorts of things that I wouldn’t have thought I’d have at the start of my career.”

 


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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