Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Opening of the Family Court premises in Melbourne



Download PDFDownload PDF

107.

APPOINTMENT OF DIRECTOR OF RESEARCH

The Attorney-General, Mr R. J. Ellicott, Q.C.,

today announced the Administrative Review Council's

appointment of Dr G.D.S. Taylor as Director of Research.

Dr Taylor, 31, is at present a Senior Lecturer

in Law at Monash University.

After graduating in Law at Victoria University of

Wellington, he completed his Doctorate of Philosophy at

the University of Cambridge in 1972. He was Humanitarian

Trust Student of the University of Cambridge (1969-1971)

and New Zealand Postgraduate Scholar (1970-1972).

. Dr Taylor will take up the appointment in November

this year. ,

Mr Ellicott said Dr Taylor's special area of

interest and expertise was administrative law. His work

will assist the Council which is an expert body of lawyers

and administrators.

The Council has the task of reviewing the law

relating to the making of administrative decisions by

Ministers and public servants and to make recommendations

t o .improve the law.

Canberra

18 May 1977 "

. 28/77

OPENING OF THE FAMILY COURT

PREMISES IN MELBOURNE

Address by the Attorney-General, Mr R. J. Ellicott. Q.C.

I would like to pay a tribute to those who have been

involved in setting up this Court in Melbourne. It has

108.

been a very significant period because the Family Law

Act introduced a new era into our family law. There is

no question of that. Those of you who have participated

in it, either as judges or counsellors or staff, deserve

the highest commendation. You have in a sense undertaken

a task not quite knowing what it involved, not quite knowing

where it would lead, and indeed, if I may say to you, urged

on by somebody who himself was not always sure of where you

were going and where it might lead.

When the Family Law Act came into operation on

5 January last year, we believed the divorce applications

would be no more than half as many again as they had been

in 1975. In fact, they turned out to be considerably more,

nearly one and a third to one and a half times as many.

Last year in the Family Court throughout Australia and in

the Supreme Courts doing family law work, instead of

something like 40,000 applications for divorce, we had

approximately 65,000.

May I remind you that in Victoria there was a week last

year when there were more divorce applications than

marriage applications. That in itself is something that

as a Sydney-sider I should remind you ofI The spate of

work has resulted not only from the increased number of

divorce applications. In a sense, these are the tip of the

iceberg. It is quite right for his Honor to point out that

this part of the work is not, in one sense, the larger

part of the work at all. The iceberg, in reality, represents

the day-to-day counselling, the day-to-day handling of .

defended cases and the solution of problems.

Another problem was that the workload could be

something of a temporary nature.. It may decrease.

It may decrease because there was an initial burst of

work but unfortunately it may also decrease because

marriage itself is.becoming a less popular institution. ,

109-

This is a troublesome thought. It is something those

of us responsible in this area constantly have to bear

in mind. , During March last year, for instance, the

applications for divorce were running at about 1000 a

week throughout Australia. By the end of April, they

had fallen to 650. I wouldn't be surprised if they go

up again in June. I don't know what the figure responds

to, but it certainly goes up and down. The average figures

are about 750 to 850 a week and this is continuing.

As I said, the number of cases coming to the Court

is completely out of step with the anticipated workload.

To some degree, this is illustrated by the fact that we

have had two sets of premises already in Victoria. We

started off with premises elsewhere but they became too

small. We have had to move to these premises and, hopefully,

these have a sense of permanence about them.

In these premises there are 12 Judges' chambers,

8 courts, 12 counselling rooms, 2 interview rooms and

a rather attractive child-minding room. It is not to be

used, may I say, by legal practitioners; that is legal

practitioners who are appearing before the Court in their

professional capacity!

There are now nine Judges of the Family Court in

Victoria. Hopefully, we shall be able to appoint

additional Judges within the next six to 12 months to

this Court. Within that period I hope there will be

an additional six Judges throughout Australia. It would

be remiss.of me if I did not refer to at least one of the

referendum proposals: that relating to retiring ages of Judges.

One of the factors which made me reticent to

recommend the appointment of additional Judges was that at

present it is necessary to appoint the Judge for life.

If there is one Court in the land where there ought to

be a retiring age for Judges, I suggest it is the Family

110.

Court. That was the view of the Senate and its Committee

looked at this question and put Section 41 - which mentions

a retiring age of 65 - into the Family Law Act. I don't think

that there was much argument about that. Should this

proposal go through, and we confidently expect it shall,

there will be a rush of enthusiasm in the Attorney-General's

Department next week to produce new legislation fixing

a retiring age.

The appointment of Judges, however, is not the

complete solution to the problems of the Family.Court.

Merely appointing Judges will not get rid of the delays.

We are appointing some more legally qualified staff to take

up the work of Regulation 96 and Regulation 99 conferences.

It is now accepted that these procedures can be used to

provide an effective way of sorting out those cases which

are likely to be defended bitterly and those which can be

settled. Hopefully these conferences will be a less,

expensive and even a more effective method of dealing with

the workload of the Court. It will allow the Judges to

do the work of Judges, that is, determining issues

between parties.

Counselling has been mentioned by his Honor. Here

again we are only at the beginning because I feel .

counselling may ultimately become the main function of

the Family Court in this country and the role of the

Judges might be diminished. That may be a long term view

but I think we ought to bear it in mind. I think we have to

see counselling as becoming a more significant part of

the work of marriage guidance, of solving marital problems

and of dealing with people in a divorce situation. Eight

counsellors have been appointed and we are about to

appoint another five. .

I also think it is■terribly important to involve

the voluntary agencies in counselling work. I am sure

the Judges do what they can to achieve this. In some

courts there are liaison committees with the voluntary

111 .

agencies and these are important to maintain; in some

courts the voluntary agencies actually attend the Court

and Use the facilities. I would like to stress that

because successive Federal Governments have paid very

substantial funds to marriage guidance organisations.

For instance, in this current year, $2 million have

been given to these voluntary organisations by way of

grants. Therefore, there is a tremendous investment in

them.

Also the involvement of the community in this work

is tremendously important; one reason for this is

because these agencies have a sound and firm belief

in the institution of marriage. I can’t emphasise

enough the need for our society to sustain the ·

institution of marriage. I can see no other way, apart

from the State, of bringing up our children except in

a marriage situation.

The Family Law Act,.in a sense, has made it easier

'to get a divorce. That is quite clear. In a sense it has

done something else -which is now becoming more apparent.

Although it has removed guilt, it has at the same time

left amongst a lot of people, the so-called innocent

parties, some sense of injustice. In other words, not

only is there a ’post divorce trauma’ that the counsellors

talk about, but there is this problem that the innocent

person feels that he or she has not been treated with a

sense of justice. They feel they wanted to go on with the

marriage. But the Family Law Act in effect says ’Well, no

longer do you have to go on with it whether you are guilty

or innocent’. .

Now that is something that the Parliament accepted;

it is something that society accepts. But we have to

understand that in doing that we have, to a real degree,

made marriage a less attractive proposition to people.

Somehow we have to start strengthening it. It is less

112.

attractive because.it does not give one or other of the

partners the same sense of security that they previously

had. They may previously have had that security by a means

which we regarded as unsatisfactory, namely, by the fact

that the marriage could not be ended except by death or a

divorce in which one of the partners had to prove the

guilt of the other.

. So far as the Government is concerned, we are

determined to maintain the basic proposition that is

contained in the Family Law Act, that marriage

is part of the basic fabric of our society. We shall

continue to do this by supporting voluntary agencies.

We have called for nominations for the Director of

the Institute of Family Studies and I hope in the next

financial year, you will see the Institute going ahead

with a fully qualified Director. We have set up the

Family Law Council and its work will be designed to

improve the working of the Act, not only in the Court

but in the wider sense in which I have mentioned.

I think that as a Government, as a society, as a

people, we need to bear in mind that the work of the ■

Family Court is not destroying marriages. It has to be

seen in a more creative way as going to the basis of

the problem in our society and finding ways and means

of resolving it.

I want to conclude by just saying this to the legal

profession. I think you have a particular role to play

in the area of family law. I cannot stress it enough.

Daily you are close to the human problem. You are

involved in the problem of actually running the Court.

I think it is very important for us as practitioners

to keep before us Section 97 of the Family Law Act. We

should try to dispense with needless formality and

lengjity cross-examination. In other words, we should

attempt to facilitate the proceeding as best we can

without making it an endless donnybrook between the .

respective clients. I say that for two reasons. It is

113.

obvious if we use legalistic procedures too much we

shall add inevitably to the trauma of the occasion.

Secondly, if we can cut down legalistic procedures,

and I am sure the Judges are anxious to do this, then

we can save that very valuable product - judicial time.

Apart from that, however, I think the legal profession

has a very distinct role to play. We need to be thinking

about that Act not as something static, but as something

dynamic. We need to be seeing the problems it may create,

the changes that ought to be made to make it work better;

we ought to be co-operating as much as we can with the

judiciary and with the counselling staff in bringing

the Act into operation. We ought to be thinking of the

wider social problems involved. '

Let me give you just one example. We have a basic

problem in this country in· relation to our social welfare.

At the moment, it costs the Government - the taxpayer -

out of the Federal Budget something like $6 billion

a year for social welfare.

If you examine the single parent area, you will find

that there are many people on pensions who are either

in a deserted or divorced position. They have children and

they are in receipt of pensions benefits. Now that

particular pension benefit was based on a view of society

that a person who was left deserted by the husband was

an unfortunate person and therefore ought to be protected

by society. .

But that sort of sanction has disappeared in a

sense - I think that's a fair thing to say - and we

are now reaching the stage where it is almost an

advantage to be single, to have the capacity to call '

on the Government to provide that sort of pension.

We are getting a tension between old attitudes and new ’

attitudes. We have built into our social service

structure many pension benefits that reflect an attitude

of a pervious morality, if you like.

114.

At the same time, the taxpayers throughout the

country are sustaining that pension. The taxpayers

throughout the country are also saying 'Give us tax

cuts1.

You might say, what has that-got to do with the

Family Court. We are at a stage where the Family Law

Act represents a new way of· thinking. It reflects, if

you like, 'the new society'. But it has to relate to

other areas which don't necessarily reflect the new

society and it is that sort of adjustment, that sort of

re-arrangements of values that we need to be working on

and thinking about.

We are just at the beginning in relation to the

working out of family law, not just in relation to the

terms of an appropriate Family Law Act but also in relation

to its effects and implications in other areas of law

and administration, such as social services. It is a

basic problem. It is basic to our society.

Your Honor, I now close simply by saying to those

present that once again we appreciate very much the .

guidance that you and other Judges have given. You,

particularly, have borne a very heavy burden. I have

appreciated this very much. I have had your wisdom and

counsel and confidence on many occasions and I look

forward to that in the future. I congratulate you in the

way you have administered this Court and I have every

confidence that you will continue to do that.

I have great pleasure in officially opening the

Family Court in Victoria in these new premises.

Melbourne

May 17, 1977

28a/77