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Speech at the opening plenary session, The State of the Nation 18th Biennial National Family Law Conference

Speech

E&OE

Good afternoon and thank you for that kind introduction.

Acknowledgments

May I begin by acknowledging the Turrbal people and Jagera peoples as the traditional custodians of the land on which we meet.

I would also like to acknowledge, in particular:

  • The Honourable Justice John Pascoe AC CVO, Chief Justice of the Family Court of Australia
  • The Honourable Justice Will Alstergren, Chief Judge, Federal Circuit Court of Australia
  • Wendy Kayler-Thomson, Family Law Section of the Law Council of Australia
  • The Honourable Justice Stephen Thackray, Chief Judge of the Family Court of Western Australia
  • The Honourable Robert French AC, former Chief Justice of the High Court of Australia
  • The Honourable Ian Callinan AC, Queensland Bar and former Justice of the High Court of Australia
  • Keith Wilson QC, Queensland Bar and former Judge of the Federal Circuit Court of Australia, and
  • other distinguished guests, ladies and gentlemen.

Opening

I would like to thank the Law Council of Australia for inviting me to be part of this important occasion. To begin, I would like to pay particular thanks to the practitioners assembled in this room – yours is a very difficult job. Few outside this room would know the mental and emotional toll taken on good hard working men and women in the profession who are striving always to do the best by their clients.

In my time in Federal politics my goal has been to achieve meaningful reform.

Recently, I stewarded the biggest legislative reform to our national security laws since the 1970s.

A total rewrite of all our national security and espionage offences and the development of new offences for foreign interference; which criminalise a range of deceptive conduct – the modern manifestation of which, if left unchecked, would be incredibly damaging to our national security and national interests.

These reforms also saw the passage of legislation to allow for a foreign influence transparency register designed to combat the corrosive effect of foreign interference in domestic elections and political processes; laws to prevent precisely the type of foreign sponsored conduct that was so divisive and damaging for the United States in the 2016 Federal election.

Before this, as Social Services Minister (with a very close working relationship with Alan Tudge, then Human Services Minister); we engaged in a wide range of administrative reforms culminating in a complete structural re-write of the nation's social security laws (turning seven payments into one Jobseeker payment with a completely new simplified welfare compliance system). 

These reforms, building on the work of previous Ministers, have seen the lowest rate of welfare dependency in Australia since 1980 and have seen 150,000 people move from welfare into work – making for better lives and brighter futures for young and older Australians alike.

The next large reform project and the one for today's address is the reform of the family courts system.

Before addressing some of the specifics of that reform I'd like to make one observation of the reform process generally.

That is – reform is not easy.

Whether it is reform of national security laws or welfare systems or court structures – it is always easier to leave the present structures in place and just try and paste over structural problems with more money or more resources.

Structural reform is difficult because many people will have become used to current structures to the point of an indentured acceptance of the status quo. This means they have lost the ability and imagination to conceive of and to promote alternatives.

Structural reform also tends to enliven the interests of people who have vested interests or commercial advantages in maintaining the status quo.

But the easier route - of leaving serious reform un-tackled; is almost never the way to seriously improve public policy outcomes for Australians. 

I might also say in committing to reform nothing is as motivating and energising as seeing off resistance to change by narrow interests whose concerns are not necessarily of the wider type.

In pursuit of better ways of achieving improved outcomes the Government now has two distinct streams of reform work and inquiry underway.

One  is about court structures.

And the other about the family law system itself.

I will return shortly to the relationship between those two streams of work; but in describing here the nature of the reform directed at Court structures I wanted to focus on FOUR central features of the reform.

First – the focus of reform is on better results for all court users

In a recent speech on the issue, His Honour Justice Thackray provided as arguments against the changes that; they "would diminish the status of family law" and that the provisions relating to appeals would "diminish the status of our (Western Australia's) specialist Family Law Magistrates".

I always pay particular attention to His Honour's comments because Western Australians generally have interesting things to say and this Western Australian has been an excellent and skilled Judge. And, of course, because Western Australia has run probably the best structural court system in Australia (notably it is a single not dual court system).

The reason why I think these contentions for opposing structural reform are off the mark is because they seem to miscomprehend what the reforms are fundamentally aimed at achieving.

The structural reforms are about protecting the people that use the courts – they are not about protecting the status of anyone operating inside the court system.

The reality is that the present system is creating confusion, delay and unnecessary costs for thousands of families inside the system.

I would argue that persisting with a two court family law system that everyone roundly acknowledges has failed does nothing particularly positive for the views of Australian families about the status of family law.

But in any event, for people who are moved from one court to the other and so suffer unnecessary cost and delay, for people who are part of a blow out in waiting times to have matters heard and for people who have waited well beyond benchmark times to receive judgements so they can get on with their lives – the real world fact is – these people do not care a jot about the status of the family law apropos the criminal law or the commercial law.

They don't care about the status of one court versus another or of one type of judicial officer compared to another.

What people do care about is their own families and how they are treated by the system.

And that's what the Government cares most about.

That is why my concern in achieving the proposed structural reforms has everything to do with replacing a status quo which is not working for Australian families.

Second – the problem seeking to be cured is a longstanding one

The second feature of the present reforms is that the status quo we seek to change has been malfunctioning for a long time.

For almost 20 years, family law work in Australia has been split between two courts. Originally the FCC did 20 per cent of family law matters. Now it does 80 per cent – a trend which shows no signs of abating.

The result of this split is that now the FCC boasts the greatest concentration of specialist family law judges in Australia. It has 41 specialist family judges each with an average of 25 years in family law.

In short, the system of two courts exercising largely concurrent jurisdiction has become increasingly unworkable for court users and is described almost universally as a failure.

The NSW Bar Association sums up this sad state of affairs by saying "we agree with the Government that the experiment of sharing jurisdiction between two federal courts and running family law matters in separate courts with separate rules and procedures has failed".

This central and pervasive structural problem has been the subject of extensive consultation and reporting for 10 years:

  • This started with the 2008 Semple Review, which recommended there should be a single family court, with two separate judicial divisions serviced by a single administration.
  • This was followed by a 2014 KPMG Review of the performance and funding of the Federal Court of Australia, the Family Court of Australia and the FCC of Australia.
  • Then there was a 2015 EY Report being a High Level Financial Analysis of Court Reform Initiatives.
  • Then in 2017 a House of Representatives Standing Committee on Social Policy and Legal Affairs Report concluded that a 'single court might provide more opportunity for appropriate triaging and case management', particularly in the context of families who are affected by family violence.
  • Most recently I commissioned the 2018 PwC Report entitled 'Review of efficiency of the operation of the federal courts'.

Each of these reviews involved significant consultation with the Courts through the heads of relevant jurisdiction and other family law stakeholders.

Both I and my predecessor consulted exhaustively over more than 12 months with the heads of each jurisdiction – the Federal Court, the Family Court and the FCC. 

The reason why as Attorneys-General we consulted with Heads of Jurisdiction is that this is the only endorsed process for consultation between government and the judiciary and is the process required by the Guide to Judicial Conduct (Third Edition).

The present Reform Bills, introduced into the Parliament on 23 August 2018, are now subject to a Senate Committee Inquiry and reporting process.

This will take 93 days from the time the legislation was introduced to the closing date for submissions – a comparatively ample amount of time. By way of comparison, the time for inquiry on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill was 23 days and on the significantly more complex Social Services Legislation Amendment (Welfare Reform) Bill – the time was 77 days.

It should be noted also that as part of the Senate Committee process, I have released all the Reports previously unreleased in a fully open and transparent way; this is the first time this has happened and for those interested they are all available via my Department's website.

So with respect to a contention that has been put regarding inadequate consultation – it would not be an exaggeration to say that the well-known problems in our family court structure that need urgent attention – have been one of the most consulted on legal problems in recent history.

After 10 years of consulting on and talking about the problem there is now a clear plan to deal with the problem.

This leads me to the third point about the reforms.

Third – the reforms take the least radical path to change

There are always more and less radical ways to confront the obvious problem of two courts with concurrent jurisdiction.

To their credit the NSW Bar Association has engaged with the reform proposal and at least provided an alternative model of dealing with the problem.

The NSW Bar suggests abolishing entirely the FCC and placing some of its judges into the Family Court and the remainder of its judges into the Federal Court.

This approach has several disadvantages. Most fundamentally it has the central disadvantage of being radical in that it abolishes entirely a very important and generally very efficiently functioning Court in the FCC. 

And being radical, this plan ignores the fact that historical attempts at reform in this area demonstrate that plans for structural reform which are objected to in consultation or publicly by the head of any of the three jurisdictions affected have failed. 

I would be genuinely interested in the consultation that must have been undertaken with the Heads of the three relevant jurisdictions by the NSW Bar Association on its proposal before it was settled upon. 

It seems unlikely to be a proposal that would ever receive sufficient support from Heads of Jurisdiction to become a reality. In effect it would become another proposal whose impracticality and lack of support meant that it would merely result in the preservation of the unworkable status quo.

The less radical and more cautionary approach taken by the Government is to ensure that no court is abolished. Rather, the existing two Courts dealing with family law are merged and preserved inside a reformed management structure that allows a single point of entry with requisite assessment and triaging of applications of individual matters to individual judges.

And further; this new structure would provide for the single leadership and management of both Courts by a Single Chief Justice and Single Deputy Chief Justice who will be tasked with redesigning consistent internal approaches to case management, practice and procedures. It is also expected that a common Head of Jurisdiction will ensure the issuing of common Rules of Courts, practice notes and directions.

Accordingly the Reform Bill introduced on 23 August 2018 does several basic but critical things:

  • The Bill will continue the existence and status of both the Family Court and the FCC.
  • The Family Court will become the Federal Circuit and Family Court of Australia (FCFC) (Division 1). And the FCC will become FCFC (Division 2).
  • The new merged court I will refer to as the FCFC.
  • Divisions 1 and 2 of the FCFC will largely both hear matters in the first instance and the Bill will give the same jurisdiction in family law matters to both Divisions 1 and 2.
  • The vast majority of family law appeals from the FCFC (and Family Court of Western Australia) will be heard in the new Family Law Appeal Division of the Federal Court.
  • Appeals from the FCFC (Division 1), as a superior court of record, will be heard by the Full Court of the Family Law Appeal Division to be established in the Federal Court, comprised of three Judges.
  • Other appeals in family law matters, including those from Division 2, will ordinarily be heard by a single Judge of the Family Law Appeal Division of the Federal Court unless a Judge considers it appropriate for the appellate jurisdiction to be exercised by a Full Court.

Having more appeals heard by a single judge of the Federal Court will free up considerable judicial resources to help reduce delays in family law appeal matters and in first instance matters.

As part of the 2018 PwC Report, it was estimated that better management of appeals could result in up to 1,500 additional family law matters being finalised every year. That means 1,500 more families afforded the opportunity to move on with their lives more quickly than they are currently able.

It is in this sense that these Reforms are the necessary precondition for the key improvement that has eluded our Family law system for 20 years being a single – unified – clear and simple – consistent set of case management, practice and procedures and formal Court rules, practice notes and directions. I will simply refer to these collectively as Court Rules.

This project of a creating a consolidated set of Court Rules will not be simple – it will take time and effort in consultation over the course of 2019. It will necessarily be a court led process under the management of the new Chief Justice and Deputy Chief Justice.

The Government recognises that this project is properly the domain of the Courts. What we are seeking to do is simply create the unified structural administrative and management environment that will allow this to happen.

Therefore, the simplification of the Court structure is the project of Government and the simplification of the Court Rules that this will allow for this will be a project for the Courts. 

There are two observations I would make about this Court-led project.

First, this is a once in a generation opportunity to use the collective wisdom represented by practitioners in this very room to help the Court design Court Rules which do the absolute best by the people using the Courts.

I am sure that the new Chief Justice and Deputy Chief Justice will seize the opportunity to have maximum input from the people at the practical legal coal face as to what works and what doesn't.

The second observation is – that the newly unified Court – in designing its new Court Rules – will need to pay great attention to devising a single effective point of entry into the new merged structure; where there is no wrong door for litigants. 

To complement this, great care and attention should be paid to an early, accurate and detailed triaging of individual matters – a thoroughgoing early assessment based on sufficiently detailed criteria – that is designed to allocate matters to the process and judicial personnel most suited to progress the matter as efficiently and effectively as possible.

In having read in detail all of the data analysis of a wide range of reports, one issue struck me as both perplexing and revealing.

Comparing the performance of the Family Court and FCC on critical criteria and KPIs appeared to me as an important part of any thorough analysis considering how to restructure a broken system – and in identifying some areas where one Court performance was better or worse than another. This was not meant as a criticism of court personnel.

Which brings me to the perplexing point.

In comparing one Court to another there was of course clear recognition that the composition and complexity of matters dealt with between the Family Court and FCC was different. 

And that some variations could be explained by that differential. 

Ultimately, the view taken by PwC was that while it was clearly recognised that there are of course differences in complexity between the caseloads of the two courts, the extent to which Family Court matters are more complex than FCC matters did not explain the large extent to which output in final order resolutions differ between each court.

What I found most interesting in this process is that for a dual court system that relies fundamentally on some early assessment of case complexity to drive allocation (and reallocation) between the two courts – the measure of and methods for assessing complexity are very rudimentary. 

Again, that is not a criticism of Judges. It appears to me that this is the product of a long standing dual rather than unified management, registry and listings system. 

When I initially asked the question 'how do we measure complexity?', frankly I was expecting a detailed multifactor analysis weighted to produce measures of complexity based on a long list of salient criteria (of which estimated trial length would be just one).

In operational reality, allocation between the Courts is essentially driven by an estimate of the possible length of a future trial in a matter. 

Simply put, if the estimate is for a greater than 4 day trial it is allocated to the Family Court. If it less than 4 days, it will be allocated to FCC.

The central problem is that for a dual system underpinned by an early assessment of complexity the estimated length of a possible future trial is a very coarse and frankly unsophisticated proxy for complexity.

For instance, in a recent document that was co-authored by a small number of Family Court Judges, they offered a central rebuttal to the data analysis in PwC's Report – being that the differentials on key KPIs (particularly final order disposals) could be explained essentially by complexity. 

That document then proceeded to assert the Government had somehow overlooked that the average length of a trial in the Family Court is 4.5 days. 

That argument might have been more plausible if the document contained an accurate statement of average trial length.

The average length of trial in the Family Court in 2016-17 was 3 days – not 4.5 days.

That is, trials are 50 per cent longer in the Family Court than the FCC.

It is only the top 25 per cent of cases in the Family Court that have a trial greater than 4 days.

Therefore, the Court, whose mandate is said to be dealing with matters longer on average than 4 days, actually deals with matters whose average trial length is 1 day short of that critical marker.

However, even using this coarse proxy as a measure of complexity, it could be said the Family Court finalised 66 per cent less cases per Judge, despite the complexity of its cases (as measured by trial length) only being 50 per cent higher.

The ultimate point when interrogating the data around conceptions of complexity is not anything resembling criticism of one group of Judges over another – that frankly is inward looking and does not advance the interests of people who use the Courts – the central point is there is an obvious and critical problem with a listings and allocation system when so much depends on assessment of complexity of individual matters where the existing measurement for complexity is inadequate. 

I return to the point that the best and resoundingly obvious outcome for Australian families is for there to be one single merged court and therefore, an effective single point of entry for families engaged in family law matters.

The failure to unify the Courts and singularise the Court leadership appears to have been the hard barrier to a single set of court rules and single point of entry triage system that will allow for appropriate assessment of complexity that deal with the actual substance of matters rather than a very coarse measure of estimated length of possible future trial.

The golden opportunity is at our doorstep to help the many families that use the Court.

More sophisticated early assessment triage and allocation, as well as better case management, will mean that risks are more easily identified and managed, and families with complex needs receive the support and assistance they need to resolve their disputes.

This structural change described above clearly is less radical than other alternatives because it does not abolish any existing Court. Professor Patrick Parkinson has described the Government's cautionary approach to restructuring through the amalgamation of the two courts that handle family law, as "very sensible".

Indicative of the essentially uncomplicated nature of the structural reform is the fact that the primary Reform Bill has only 20 new provisions and 18 substantially changed provisions to the current legislative situation which exists with the two courts.

So on top of the issue being a relatively simple structural reform, on an issue that has been consulted on extensively for a decade, the Law Council of Australia, who has contended there is inadequate time for consideration, will have had (from the time of receiving the advance draft of the Reform Bills in mid-July) until 23 November to consider the Bill and make a submission – which means a clear 3.5 days to consider each new or modified provision.

Noting that the time to debate and determine the path forward on structural reform after 10 years of reports and consultations is now, I might turn to make a brief comment about the ALRC's important work.

The ALRC's Terms of Reference are broad and far reaching, and require the ALRC to consider the appropriate role of the family law system in modern day Australia. This includes how the family law system can best be responsive to the needs of diverse families to resolve matters quickly and safely, prioritising the best interests of children, while minimising the financial burden on families.

But the one thing those Terms of Reference specifically excluded was a consideration of the structure of the federal courts.

That was not included in the terms of reference of the ALRC for the simple reason it has been reported on 6 times previously.

I had a good read of the ALRC's Discussion Paper on this morning's flight and the paper clearly concludes that, in its current form, the system is not working for Australian families.

The purpose of the ALRC's Discussion Paper is of course to generate further input and the Government is interested in maximising stakeholder's contributions on its proposals. I strongly encourage everyone with an interest in these issues to have their say during the consultation phase of this process.

It's important that the ALRC is able to consider all the options canvassed in the Discussion Paper to improve the family law system without the Government declaring early positions on specific proposals until the ALRC's final report.

However, my preliminary observation is that it contains both the sort of broad ranging look at problems and the willingness to consider new ways of tackling those problems that has been somewhat missing from this space previously.

And while we are still at the point of generating further community and stakeholder input to the ideas and issues that have been identified by the ALRC, if I had to offer one early input it would be that the ALRC is spot on where it identifies a lack of proper and rigorous case triage as a central deficiency in the present system. This is the only way we will see better alignment and allocation of matters to the appropriate processes and personnel, and it complements the focus of the Government's proposed structural reforms of the Courts which deal with family law to ensure they help families engaged in the system as quickly, cheaply and efficiently as possible. 

Fourth – numbers matter

As I noted earlier; as part of the now underway Senate Committee process, I have released all the reports previously unreleased in a fully open and transparent way.

Three of these reports were conducted by major international management consultancies.

All major structural court reform around comparable common-law countries looks for data analysis to help guide and inform the reform process.

AND while that analysis is not determinative of any particular course of reform it is a very good and likely necessary precondition for meaningfully and thoughtfully considering reform options.

Having comparative intra-court and inter-court data available on comparative measures of things like:

  • number of judicial days in court
  • time to trial
  • time to judgment
  • percentage of ex tempore judgments
  • number of interlocutory hearings per matter
  • finalisations per judicial officer, and
  • many more – is an important basis for framing different reform options.

At its most fundamental level, what these types of data-based analyses do is help unpack and understand problems that are capable of being fixed without more resources. In fact, some issues can never be appropriately fixed by extra funding alone.

Making our courts as efficient as possible is not ever to discount the primacy of doing justice between parties according to law, but it does recognise three central realities:

  • One – delays caused to parties by inefficient processes which see greater costs incurred by court users are themselves not doing justice to parties.
  • Two – some problems, particularly when they are structural, systemic or organisational in nature, cannot be fixed simply by allocating more money to the deficient system, organisation or structure.
  • Three – the issue of good analysis of data becomes all the more important when we consider that a judicial resource is one of the most valuable, skilled and expensive resources anywhere in government – (depending on which federal court - a judicial officer comes to the taxpayer at a yearly cost of just under or just over 1 million dollars excluding most Court corporate or property costs, or pension liabilities for Federal Court and Family Court Judges). 

Ultimately, with judicial independence comes the rare accompanying status for the Courts as self-administrating bodies; separation and independence carries with it an obligation to the Australian people to ensure that the independently administered entity is using its public resources as efficiently and effectively as possible in carrying out its responsibilities.

That is why I have continuously noted both intra and inter-court comparative data analysis looking at comparisons of individual judicial performance or performance between Courts.  Indeed, reading the recent views of Dyson Heydon, he makes the salient point that Judges need to be prepared for a future with more open and transparent provision of these comparisons for the public which will inevitably become a more common place feature of Court led administration.

Recent and very significant investment by the Government into the sector has not been simply in the nature of adding extra judicial resources, rather it has been expended in a way designed to improve systems and structures of dealing with cases.
So recent funding has sought to improve structures and processes rather than just place more judges into inefficient systems.

The 2017-18 Budget provided a package of targeted measures aimed at bolstering the family law system:

    • $10.7 million to the family law courts to engage additional family consultants to assist with complex parenting matters and improve risk identification and management  
    • $12.7 million to establish Parenting Management Hearings, a new, non-adversarial forum for resolving less complex family law disputes, and
    • $14 million over three years will also be provided from the Public Service Transformation Fund to transform and digitise court processes, including lodgement and case management.

His Honour Justice Thackray recently said about the Reforms that, "we should be wary of law reform driven by statistics produced by firms of accountants in the guise of measuring or quantifying the productivity of the courts."

So elegantly written is this sentence I had to read it three times to work out if it was criticising me or the PwC Report I commissioned.

In the end it seems to be dismissive of both.

Guise is an interesting choice of words because it means that Reports like the three I have recently released for the Senate Committee process are commissioned for a purported purpose (in this case measuring or quantifying productivity) but that stated reason conceals some true reason for commissioning these reports.

I can say when I commission such reports I do so because they can deconstruct known problems and tell us more about those problems to inform the development of better solutions for Australians.

There is no guise – there is no ulterior motive – my own view is that a central problem that parts of our justice system has likely suffered from is too little data collection and analysis and comparative measurement rather than too much.

While I am not intending to go into the findings of these three reports in any detail one example of content is useful.

I mentioned earlier the volume of family law has steadily increased to the FCC since its formation almost 20 years ago.

Something fascinating that the PwC Report found was that that trend has accelerated in recent times.

In 2015-16, the Family Court had around 3,000 matters filed for final orders; one year later it was 2,750.

That is a very significant decrease in a 12 month period and it represents court users and counsel making choices about where to try and have matters heard and resolved.

There can be no real complaint about this year-on-year comparison not being a like-for-like comparison - the types of cases coming into the one court WE would not expect to change significantly from one year to the next.

Usually, when workload decreases, output, measured in finalisations, should increase. However, here, the reverse occurred and finalisations also dropped from about 2,950 to 2,750. 

This is a significant driver of increasing backlogs in the family law system. 

Again, identifying increasing clearance rates in the FCC is not a criticism of one judge or type of judge over another – I suspect that the structural problems of divergent case management and interlocutory processes are the central problem AND in many ways, judges from both Courts have been let down by the confusion and complexity of having two systems operating in one area of law.

But what this graph demonstrates is that the PwC Report and others like it are valuable because they tell policy makers new things.

The PwC Report estimated that through the common structured case management process that will result from the Court merger, up to 3,000 additional family law matters will be finalised each year.

If that seems a lot, consider that the exceptional performance in clearing matters from the FCC in the last three quarters, that was highlighted in His Honour Justice Alstergren's speech, represents an extra 1,107 matters being finalised.

If there is a realistic ability to finalise thousands more matters each year inside existing resources by merging the courts then the best reason for supporting this reform is that this represents improved outcomes for thousands of Australian families - more families being in a position to move on with their lives much quicker than they can at the moment under the present structure.

Conclusion

As I have noted, the central purpose of the Reform Bill is to make the Court Rules as simple, consistent and effective as possible and to facilitate a single point of entry for family law matters and to achieve this, the Bill creates a framework for common leadership and a common case management approach.

As earlier described - the Government intends to appoint one person as both Chief Justice of Division 1 and Chief Judge of Division 2 of the FCFC. 

And have one Deputy Chief Justice of Division 1 and of Division 2.

These dually appointed leaders of the new FCFC will be invested with the power to make Court Rules for both divisions of the FCFC and the Bill itself requires that the Court Rules promote the objects of the Bill, which expressly require achieving common practices and procedures, Rules of Court and forms.

At this point, I am pleased to note the Government's announcement last week of the appointment of new leadership for the Family Court of Australia.

From 10 December this year, the new Chief Justice of the Family Court will be the Honourable William Alstergren, the current Chief Judge of the FCC and Deputy Chief Justice of the Family Court.

Consistent with the ultimate leadership model for the new FCFC Chief Judge Alstergren will retain his commission as Chief Judge of the FCC.

The appointment of Chief Judge Alstergren as a common Head of Jurisdiction of both the Family Court and the FCC will allow for the critical harmonisation process for Court Rules, in anticipation of the Government's proposed structural reform, to commence as soon as possible. 

And that process, of course, has an enormous amount to be gained by the wisdom of experience of on the ground conditions that exists with practitioners in this room.

With Chief Judge Alstergren's elevation, the Honourable Justice Robert McClelland will become the new Deputy Chief Justice of the Family Court.

The new Chief Justice practiced at the Bar for over 25 years, including in family law matters.

Since 2015, as Chief Judge of the FCC, His Honour has managed in a remarkably energetic and diligent way the busiest family law court in Australia, he has personally conducted 593 family law hearings – 21 appeals and 314 separate matters.  Former Justice Susan Crennan has said that, as well as being a fine lawyer; he had 'leadership qualities, enthusiasm and capacity for hard work'.

The new Deputy Chief Justice of course has 21 years in practice as a Solicitor and later Barrister with time out only as Commonwealth Attorney-General from 2007 to 2011, to oversee the entire family law system.  During this time he instituted a number of important changes to the Family Law Act 1975 to better support separated and separating families and to improve the way that the family law system responds to family violence and child abuse.  

I might note also it was His Honour in 2008 that appointed Des Semple to conduct the first review of the federal court structure that kicked off ten years of reviewing; therefore demonstrating some interest in these matters.

In having previously had the role of Attorney-General, Justice McClelland knows that sometimes Attorney-Generals are characterised as criticising the judiciary for statistical comparisons made in the usual run of public policy AND then sometimes they are criticised for being too slow to defend judges from the criticisms of other criticism. Ironically that other criticism of judges if not by the media is usually made by other judges but I'm very fortunate in present circumstances in Justice McClelland and Chief Judge Alstergren in having two jurists with such a wide range of experience in law and family law from such different and complimentary perspectives that they have not needed any executive defence of their merits.

Finally, both these appointments coincide with the Honourable Chief Justice John Pascoe's retirement on 9 December.

Chief Justice John Pascoe has had a long and distinguished contribution to the law and to Australian public life.

Chief Justice Pascoe brought invaluable knowledge and expertise to the family law system in Australia, particularly during his time as Chief Justice of the Family Court and Chief Judge of the FCC. On retirement, Chief Justice Pascoe will leave an enduring legacy on Australia's family court system, as recognised by his appointment as a Companion of the Order of Australia in January 2016 for eminent service to the law and to the judiciary. If there is a lesson I have learned from Justice Pascoe it is that an abundance of unfailing politeness should never be mistaken for a lack of resolve.

And I read again, Justice Pascoe's speech that was made earlier in this conference where he made a very pointed observation and I might just close by saying that what the present Chief Justice noted was that if you have a system in need of fundamental reform, of the type that we have and of the type that the ALRC will soon have upon us, if you fail to engage in the process of reform and fix the system, if Parliament misses the opportunity and if we as lawyers and practitioners and members of the Australian legal community, miss this opportunity then it will necessarily be the case that the Australian people will make demands for even greater and more radical proposals and change.

So we have an opportunity before us and if I can say in wishing Justice Pascoe all the best, that we will not and I am not going to resile from that process of reform.

Again, thank you very much for the invitation to be here.

Ends///