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.