The Final Days of Alastair Nicholson: Chief Justice Family Court of Australia

William John Stapleton

Description

Refusing to hide, Chief Justice of the Family Court of Australia Alastair Nicholson, scheduled to appear before an inquiry into family law and child support, entered Australia's Parliament House in Canberra via the front door on the 10th October 2003.

As Chief Justice of one of the most unpopular courts in the country, Nicholson had become a key figure fuelling discontent with Australia's political, bureaucratic and judicial wings of government. With millions of Australians having gone through the shredder of the country's divorce regime, he had become a focus for community discontent.

So heightened had the debate around Nicholson become that politicians rightly feared the general public were losing faith in the country's governance.

Nicholson was arguably the single most outspoken, certainly the most controversial judge ever to serve in the Australian court system; deeply hated by some, admired by others. Politicians from both sides of politics had reason to fear his ever ready tongue.

The appearance before the Inquiry of the one man who had done more to shape the nature of Australian family law than any other individual had been looked forward to by his critics with a kind of wonder and anticipation, a fascination for the grotesque.

Despite a plethora of Inquiries, including a devastating critique from the government's chief adviser on legal matters the Australian Law Reform Commission, doubt was not a trait Nicholson ever displayed in public.

Was this the inquiry which would finally nail him to the wall?

To the chagrin of his critics, Nicholson showed not a sliver of regret or self-doubt. He has continued to be outspoken since his retirement from the bench and move into academic life.

Sujets

• Vie de famille
• Relations familiales
• Family Law
• Droit et juridique
• Separation
• Law
• Divorce

Informations

• Publié par: eBookIt.com
• Date de parution: 27 juillet 2013
• Nombre de lectures: 0
• EAN13: 9781456615154
• Langue: English

Extrait

The Final Days of Alastair Nicholson: Chief Justice Family Court of Australia
 
by
William John Stapleton
 


Copyright 2013 William John Stapleton,
All rights reserved.
 
 
ISBN-13: 978-1-4566-1515-4
 
 
No part of this book may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems, without permission in writing from the author. The only exception is by a reviewer, who may quote short excerpts in a review.
 
 
A Sense of Place Publishing 2013.
 
While The Final Days of Alastair Nicholson can be read separtely, this is the fourth short book in the series Chaos at the Crossroads: Family Law Reform in Australia. The preceding volumes in the series are: The Birth of Dads On The Air, Chaos at the Crossroads: In The Beginning and State Created Pain.
 
The Final Days of Alastair Nicholson: Chief Justice Family Court of Australia
 
Refusing to hide, Chief Justice of the Family Court of Australia Alastair Nicholson entered Australia’s Parliament House in Canberra via the front door on the 10 th October 2003. Built in the 1980s atop an artificial hill, Parliament House is one of Australia’s largest and most distinctive buildings. With 4,700 rooms, it is shaped in the form of two boomerangs and topped by an 81 meter 250 tone flagpole.
 
Whether the politicians conducting a Parliamentary Inquiry into family law and child support inside “The House” that day were actually serving the interests of those who had elected them was questionable.
 
As Chief Justice of one of the most unpopular courts in the country, Nicholson had become a key figure fuelling discontent with Australia’s political, bureaucratic and judicial wings of government. With millions of Australians having gone through the shredder of the country’s divorce regime, he had become a focus for community discontent.
 
So heightened had the debate around Nicholson become that politicians rightly feared the general public were losing faith in the country’s governance.
 
Nicholson was arguably the single most outspoken, certainly the most controversial judge ever to serve in the Australian court system; deeply hated by some, admired by others. Politicians from both sides of politics had reason to fear his ever ready tongue.
 
Nicholson’s appointment for the day was to appear before the House of Representatives’ Family and Community Affairs Committee chaired by National Party politician Kay Hull.
 
For months, under the full glare of media attention, the Committee had been conducting a public inquiry into the hot button issues of family law and child support
 
The Inquiry had prompted extensive media coverage and debate.
 
The appearance of the one man who had done more to shape the nature of Australian family law than any other individual had been looked forward to by his critics with a kind of wonder and anticipation, a fascination for the grotesque.
 
Despite a plethora of Inquiries, including a devastating critique from the government’s chief adviser on legal matters the Australian Law Reform Commission, doubt was not a trait Nicholson ever displayed in public.
 
Was this the inquiry which would finally nail him to the wall?
 
Nicholson, with more front than Selfridges as the saying went, took not one step backwards throughout the day.
 
He showed not a single shiver of regret or concern at the controversy level of debate now surrounding his Court.
 
Perhaps more than anything it was his singular lack of empathy for the litigants struggling through his court which fascinated and repelled the public, particularly separated fathers and their lobby groups.
 
Nicholson, only the Family Court of Australia’s second Chief Justice since its formation in the mid-1970s, had held the position since 1988. He would not retire until the following year. From one cosy sinecure to the next, he then went on to become an Honorary Professional Fellow at Melbourne University, first with the Faculty of Criminology and later with the Faculty of Law.
 
The nature of family law in Australia was almost entirely dominated by Nicholson at the time he appeared before the parliamentary committee inquiry.
 
To the present day his influence remains strong. On the face of it, Nicholson had one of the country’s most distinguished legal careers. Born in 1938, he joined the Victorian Bar in 1963 after graduating from Melbourne University. He became a Queen’s Council in 1979 and was a Justice of the Supreme Court of Victoria between 1982 and 1988. He was Judge Advocate General for the Australian Defence Force until 1992. In retirement he still retains a number of honorary positions, including as Chair of the National Centre Against Bullying.
 
None of these fitted very well with his later façade as darling of the left, alleged champion of oppressed and disadvantaged.
 
Appointed by then Prime Minister Bob Hawke, Nicholson’s primary qualification for becoming the Family Court’s Chief Justice was his loyalty to the Labor Party. He had twice run for election in the Victorian seat of Chisholm as a member of the Labor Party, failing in both 1972 and 1974.
 
Bob Hawke, under questioning at the time of Nicholson’s retirement, expressed no regret at the appointment - despite the disrepute which his detractors claimed Nicholson had left the Family Court in administrative disarray, mired in controversy and with its public reputation in tatters. Hawke said he believed Nichols on had done an excellent job.
 
The nature, style and substance of family law in Australia were almost entirely dominated by Nicholson at the time he appeared before the parliamentary committee inquiry. To this day his influence remains strong.
 
In more than a quarter of a century no Chief Justice of the Court, either its founding head Elizabeth Evatt or Chief Justice Nicholson, who came to power in 1988, had ever, that Dads On The Air could find, said a positive public word about fathers or fatherhood.
 
Amongst bureaucratic and academic feminists Nicholson was revered as a hero promoting women’s and children’s rights.
 
But to his many critics in government, the legal profession and the community, Nicholson’s legacy was a destructive, dysfunctional and discredited Family Court.
 
To fathers’ and family law reform groups’ Nicholson was Public Enemy Number One.
 
Nicholson in turn was a staunch defender of the Family Court and its practices and an equally vocal critic of father's groups, which he dismissed as "sinister" and "dysfunctional".
 
To his vociferous critics on the country’s ballooning separated men’s internet news and chat lines he was the focus of blame for everything that had gone wrong in their lives. For them his reign had seemed interminable, and they blamed him personally for everything that was wrong with family law.
 
The Australian tradition of judges refraining from speaking in public about current events or the social debates of the day was not one to which Nicholson adhered. He never hesitated to express his opinions to the media on any subject that interested him or reflected in some way on human rights or family law.
 
Nicholson’s numerous pronouncements were followed by his critics with a kind of lurid fascination.
 
But since the 1980s, nothing had ever stopped Nicholson speaking out on his numerous hobby horses.  In the year or so before the inquiry began Nicholson had created a series of stirs; one of them by calling for the removal of the common-law defence of reasonable chastisement. He supported the call for laws banning physical punishment of children so that smacking would become "socially unacceptable".
 
Next, he declared, after a retrial of an unrepresented woman in a case where there were accusations of domestic violence, that the lack of Legal Aid appeared “to infringe the practical enjoyment of rights” under international conventions.
 
Never mind the numerous self-represented men who struggled every day to get a fair hearing in the court. Most fathers found themselves denied Legal Aid because only one party in any court case can receive it. The other party has to somehow face up to a tax payer funded barrister, lawyer and legal assistant. That’s what they call a justice system.
 
Nicholson stirred more debate when he suggested decision making about asylum seekers “ought to be properly understood as an aspect of family law."
 
The influx of illegal refugees and boat people onto Australian shores had long been a contentious issue within the general population.  Considering their number to label their cases as “family law” would have represented a significant expansion of Nicholson’s empire.
 
On the question of compulsory DNA testing, an increasingly hot topic amongst men who felt they were being saddled with payments for children not biologically their own, Nicholson argued against discrete testing without court orders.
 
In other words, a father was not entitled to take a hair off his son or daughter’s head and discretely have it tested to prove whether or not the child was biologically his. The issue was a live one because a significant number of fathers were concerned they were paying crippling amounts of child support for children that were not theirs.
 
The obtaining of any orders out of the Family Court is a complex and vexed procedure. Nicholson said: “I think there's a considerable element of invasion of privacy involved in one person unilaterally going off and getting a DNA test for a child.
 
“Social fatherhood” was one of the buzz expressions of the time.
 
Nicholson had long appeared to regard himself as some kind of mystical saviour of children, fawned on by left wing journalists, feminist academics and some sections of the legal industry. The views of Nicholson often jelled with the views of the first, more radicalised wave of women journalists interviewing him. These women had often had to fight hard to get into the newsp