Members of the Continental board of Counsellors, distinguished
visitors, ladies and gentlemen. I am very honoured to have been asked to open this
National Conference of the Association for Bahá'í Studies. The conference theme of
"The Family: Our Hopes and Challenges" is a topic reflecting a concern which
runs deep within the community.
I have recently read that the central theme of your founder's
writings is "that humanity is one single race and the day has come for its
unification into one global society. Through an irresistible historical process, the
traditional barriers of race, class, creed, faith and nation will break down."
This is very much in harmony with the theme for the International Year
of the Family which we are celebrating throughout 1994 - "the Family as the smallest
democracy at the heart of society".
In the Family Court, we see the consequences of ruptured and torn
family lives in the battles over property and children. Most people solve their personal
problems with dignity and concern for their children, even though the process of
separation is one of the most traumatic periods of their life. Some can do it without the
assistance of skilled professionals but many rely on the services of the Court. They are
able to call on the services of the Court because the Family Court strongly encourages
problem-solving methods other than by recourse to judicial decision.
Social Forces on the Family
The last three decades particularly have challenged us in a number of
ways. As a society we have most recently faced a prolonged and deep recession. Major
characteristics of this recession include massive unemployment of both our young people
and of those in their productive middle years and this has been accompanied by, and in
many instances has as its consequence, high rates of marriage breakdown, increased
secularisation, youth homelessness and widespread domestic violence and abuse of children.
The roles of women and men vis-à-vis their family responsibilities are
considerably affected by the commitment of women to the paid workforce. 60% of married
women with children are currently working outside the home for some or all of their day.
This is an increase of 14% from 1980. 53% of all couple-families with dependent children
have both parents in the workforce and in more than 40% of these families both
parents are working full time.
There are obvious implications to be drawn from these figures and
trends in relation to child care, the assumption of responsibility for domestic work and
the extent to which we define ourselves as members of a family or as individuals occupying
a number of different roles.
We are also seeing evidence of quite rapidly changing values within
society. Associated with these are demographic changes influenced by heavy reliance on
reliable birth control and increased life expectancy. Women are far more likely now to
have one or two children close together which means that only a small portion of their
adult lives is actually spent in child rearing.
Ironically though, we are presently experiencing the emergence of a
fairly recent phenomenon, called variously the 'never empty nest' or the
'ever revolving door', whereby children are leaving home at a later age due to
their prolonged period of economic dependence. A recent survey showed that less than 40%
of young women and 50% of young men had left the parental home between the ages of 20 and
24. They are likely to leave and return at different times depending on their employment
patterns and the success or failure of their personal relationships.
The seventy percent of Australian marriages which do not end in
separation or divorce are now likely to continue for around 50 years whereas in previous
centuries death was a constant disrupter - death of women in childbirth, of babies and
infants - and blended and single parent families were formed frequently as a consequence.
Today such families are usually formed by conscious choice.
The remaining thirty percent of Australian marriages fail, and the
divorce statistics show that each year approximately 55,000 children experience parental
divorce. In addition an unknown number whose parents were not married or not divorced
experience a similar disruption by separation.
For many of our clients the marriage is their second or possibly even
third, and the chances of subsequent marriages failing are higher than for first
marriages. These figures are of considerable concern. Arguments that policies and programs
are insufficiently directed towards strengthening families have much merit and I can echo
the often expressed view "that there should be a fence at the top of the cliff rather
than an ambulance at the bottom."
We as a society need to provide more support for families prior to
their reaching crisis point, rather than intervening when problems have become
insurmountable. Certainly the Family Court almost invariably sees its clients when the
difficulties are already entrenched. I would like to refer to some of the services which
the Court provides.
Family Court Services
Although most parents make arrangements for their children with the
best of intentions and in very difficult circumstances, the Family Court is still required
to direct a considerable amount of its energies into conciliating disputes involving
The Family Court Counselling Service is staffed by trained
psychologists and social workers who see approximately half their clients before any
litigation has commenced. If the parties are not diverted from litigation they are seen
during the Case Management process, a system with compulsory steps designed to guide the
parties towards a resolution which reinforces their ongoing and important roles as
In addition to the well-established counselling service, the Family
Court has recently commenced a mediation service which, due to funding, operates only in
Melbourne, Dandenong and Sydney. Mediation is a process which emphasises the
participants' own responsibilities for making decisions that affect their lives. It
is an early intervention strategy which may be used without the need to institute
proceedings by filing documents. Mediation also provides a forum for addressing both child
and property related disagreements together where previously this has not been generally
Sessions involving mediation of a complex single issue or dual
children/property issues are conducted by two mediators - one with a social science
background, the other with a legal background, normally one male and one female.
Mediators do not make decisions, nor do they give advice. They provide
a structured step-by-step process to enable issues to be identified and explored, options
raised and decisions made by the parties.
The Court is eager to see mediation available throughout Australia. In
saying this, I should emphasise that mediation is not suitable for all separating couples.
Where there is a history of substance abuse, violence, or a party's capacity to
negotiate has been subordinated by the other party's dominance, mediation is
unsuitable and clients are referred to other services both within the Family Court and
For couples where such limitations are not found, mediation can offer
an empowering means of reaching agreements. The tentative conclusions of our recent
evaluative research strongly suggest that agreements reached by the parties themselves
show better compliance and satisfaction than those which are imposed as a result of a
determination by a Judicial Officer.
Awareness of Gender and Cultural Issues
There is an increasing community awareness of issues associated with
access to justice and the treatment of women and indigenous people in the legal system.
Although many valid concerns and issues are being raised, there have been occasions where
the media has preferred ill-informed sensationalism to an appropriate analysis of the
steps being taken by Courts to improve their understanding of these particular groups. The
Family Court is a leader in this field.
Accusations of gender-bias have a particular significance for the
Family Court. More so than any other jurisdiction, the Court is an inherently
"gendered" field of dispute, predominantly involving disputing husbands and
wives or unmarried parents. Despite the claims of some fathers, it should be noted that
where fathers pursue their applications for custody to a hearing before a Judge, they are
successful in 30% to 40% of cases. This is a high figure given that the gendered nature of
family roles in Australia still sees women as more likely to be the parent exercising the
primary responsibility for the care of children.
Earlier this year, I was one of a number of Judges who participated
with senior managers, counsellors and registrars in a gender awareness program conducted
by the Family Court. This seminar was only a first step in an ongoing commitment by the
Court to overcome the problems created by gender, domestic violence and different
cultures. That seminar began our preparation as members of the Court to gain the skills to
facilitate awareness of these matters within the Court.
Through the use of critical readings, small group discussions and role
plays we began to examine many important issues. Foremost, was gaining an appreciation of
how our individual characteristics such as gender, class, ethnicity and educational
history, filter our perceptions of the world. This exercise required us to think
reflectively and retrospectively about what we might otherwise take for granted.
Making changes in a complex organisation such as the Family Court
requires a corporate commitment, and it is incumbent upon Judges to show leadership in
A different area of innovation in the Court concerns our service
provision to Aboriginal and Torres Strait Islander people. The present justice system has
a significant gap to bridge in gaining the confidence of indigenous peoples, especially
where children's matters are concerned. These difficulties were brought into sharp
relief last year when the Court undertook a project as part of its program for the
International Year of Indigenous People.
As a result of consultation with a range of Aboriginal and Islander
community leaders, the Court became aware that its services were perceived as having
little or no relevance to these groups. Moreover, where conciliation or litigation was
sought, it was usually as a result of the breakdown of an inter-tribal or mixed race
marriage. The conflict was often at a very difficult stage involving some jeopardy to the
welfare of the children. It became evident that Court personnel needed to improve their
understanding of the culture and problems faced by Aboriginal and Islander people.
As a result, the Court has adopted an approach which emphasises
listening to the communities about their needs and experiences. The Aboriginal and Torres
Strait Islander Awareness committee is ensuring that the Court hears from people
throughout Australia, in both urban and remote communities and that they are involved in
the process of defining how the Family Court's services can best meet the needs of
these groups. As the Chairman of the Committee, Justice Moore, has said, the
"recommendations we make will spring from their voice".
The voices of the communities are also being heard within the
Court's internal development processes. In may this year, at the Court's
National Seminar, a program was devoted to listening to leaders of Aboriginal and Islander
communities explain the principles and concerns of their cultures. Family is a paramount
issue: they have seen the devastation of indigenous cultures around the world and believe
that the preservation of the family is one of the keys to cultural survival.
The committee has gathered a number of concrete suggestions. For
example, it has been suggested in the Northern Territory that Aboriginal counsellors work
with or within the Court to form an educative bridge between the community and the Court.
The importance of interpreter services has also been highlighted, along with the value of
appropriate physical settings to conduct cases involving Aboriginal or Torres Strait
peoples. In these and other sensitive matters, the Court is aware that the provision of
appropriate services by the Family Court of Australia will not happen overnight and must
be a service which meets needs defined by the people themselves who are, after all, the
experts about family life and family problem-solving in their communities.
I have attempted to provide an insight into the steps being taken by
our Court to enable all persons to have access to justice without the handicaps of the
bias which has been evident in the past. It is the intention of the Court that those who
do need the services which it provides may be assisted in reaching a decision between
themselves rather than having a decision imposed upon them by judicial decision. In this
way they retain control of their lives and do so with dignity and esteem.
I wish you well in your conference deliberations and have great pleasure in declaring
the National Conference open.