November 27, 2003 | Graham

What part of Separation of Powers doesn’t he understand?

Joh Bjelke-Petersen famously couldn’t explain to the Fitzgerald Commission what the doctrine of separation of powers meant, and the whole country laughed. What would you expect from a hayseed “banana bender”? From some of the media comments that followed it was clear that most of those snidely sniggering had no idea either.
After his comments reported in yesterday’s Courier Mail you can probably add Chief Justice of the Family Court, Alistair Nicholson to that list. It is wrong for a judge to be telling the government what to put in its legislation. How much confidence can the public have in a judiciary that has lobbied against the very legislation that it is supposed to be applying? Judges have a duty to be, and appear to be, impartial.
And you would also hope a judge would apply better logic than this: “Justice Nicholson…said a recent study found 64 per cent of separated fathers had contact with their children, while 25 per cent of mothers in the study believed their children had insufficient contact with their fathers.
“If 25 per cent of mothers believe children don’t have enough contact with fathers then that points to fathers not wanting the contact,” he said.
No it doesn’t. What it points to is that somewhere between 64 and 75 percent of fathers do want to have contact, and that’s without exploring the possibility that some of the 25 percent of mothers are exaggerating.
With almost 50 per cent of marriages ending in divorce these days, the family law courts are the part of the legal system that many of us are having the most to do with, and it is one of the worst administered. Before trying his hand at legislation the learned judge might like to give administration a go. From my experience the commercial courts run much more smoothly and efficiently than the Family Law jurisdiction. It’s partly because the Family Law Courts try a touchy feely approach to dispute resolution, and it’s partly because they never do basic things like awarding costs against parties that lose. One of the best mediators is the thought that you might have to pay the other sides bills as well as your own.
This isn’t the first time that Nicholson has stepped outside the permissible bounds of judicial activism. No wonder that so many separated and divorced parents and their lawyers tell me that so many others in the family law system, including those in the Child Support Agency, appear to think they can do better than the legislature as well.

Posted by Graham at 8:12 am | Comments (1) |
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1 Comment

  1. Separation of powers has only ever worked one way for the Chief Justice. Looking through old Hansards yielded the comment from the chairman of the committee which produced the reform package of the mid-nineties that Nicholson had lobbied the Prime Minister to have him removed from the committee. The same MP, Roger Price, repeated the claim at a recent conference in Canberra.
    As it turned out Nicholson and his court comprehensively ignored the reforms anyway, often not even paying lip service to them. At the House committee hearings recently, Nicholson claimed not to know that one of the aims of the Refdorm Bill of 1995 was to introduce shared parenting. The second reading speech in Hansard, acknowledged as a major resource for defining Parliament’s intentions, plainly states shared parenting as one of the aims of the reforms.
    Other gems from his testimony included being unaware that his court made standard orders in the vast majority of cases of mother custody, father access every second weekend and half the school holidays, and then claiming that it had been foisted upon the court by the community.
    Even better was his claim that the FC sent cases involving perjury to the Attorney General’s Dept, but the AG did nothing about them. An AG spokesman said that they get a handful of cases every year and they are all thoroughly investigated. Both can’t be right, and the person who lied should be summarily dismissed for proven misconduct and stripped of his Super.
    I’d like to see that!!!!!

    Comment by Brian Taylor — November 28, 2003 @ 12:35 pm

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