The Valedictory Ceremony for the Honourable Justice Bernard Warnick took place at the Family Court of Australia, Commonwealth Law Courts, Brisbane on 31 March 2010.
The speech delivered at the Ceremony by His Honour is reproduced below.
Thank you, Chief Justice for those remarks, including the remarks of others that you’ve conveyed. They are unduly generous. Thank you for standing and falling silent as we came in. To be thanked for that probably seems strange to those of you here who work in courts, but to family and friends, it’s not been part of our interaction despite occasional suggestions from me.
Let me explain my thoughts about today. When a lawyer joins a court, that lawyer ceases to be an advocate promoting the partial position of the litigant – a pleader for hire – and he or she embarks upon a very different role. In our society, ceremony and ritual are commonly used to mark changes in status. The court welcoming ceremony dramatises the submersion of the individual within the institution. It is, I think, helpful to that individual and to the profession of which the lawyer has been part, to highlight the change with ceremony. I’m less confident that when a judge leaves the bench, a formal court ceremony need mark the transition. No assistance should be needed to shed the trappings and aura of office. In any event, no difficulty beyond the personal will arise if we do not shed them. Our fellow citizens will easily recognise that no deference is due to we retirees.
I do not mean that the pleasure of a personal gathering to say goodbye and thank you should be forgone. It is the ceremony I question. In one way, it seems to use the trappings of office to elevate the individual, whereas I do not see myself as any more deserving of public and formal recognition than others in innumerable occupations who have discharged their allotted tasks. In the end, I could see only two reasons to support this formality, but I seek merely to explain myself not to press my views on any of my colleagues.
The first reason is that though the judge departs, the gathering of judicial colleagues to preside over that departure, in a way, reinforces the very message projected by the welcoming ceremony, namely, the individual ought be seen as simply a functionary of the system whether joining or departing. It is the institution which endures. Secondly, a departing judge may be able to make a final contribution, to distil the essential lessons of the judicial life, to say something insightful about the operation of the law. That may be of some benefit to the institution and/or to society. That is what this ceremony means to me.
There will be no speeches from the bar table. I gather that some plan to speak at the cocktail party to follow but I do not know who that may be. But I did not wish to call people into my court room and request they speak about me, and so to such ceremony as there is. The lawyers among you will know the reason for which they stood and fell silent when the court was opened. It was not because of the individuals on this bench. It was a sign of deference to the court. But it is well, I think, to remind ourselves from time to time that the court is not real, at least, not like a rock or a lizard is real. The court is but a creation of our thoughts and of language. This gathering here today is a court sitting only because we say so. Otherwise it’s just a group of people in a brick and mortar building.
Why do I stress what may seem obvious? It is to say this: because a court is simply a creation of thought and of language, it is fragile. Just as words built it, words can tear it down. And no words can do more damage than those of a judge, for the judge is central to the concept. Those who conceived and developed our courts scripted the role of a judge to an overwhelming extent. When an appointee joins the court, he or she should not perform as him or herself but rather should act the role of judge. Imagine a director introducing new characters and script into Hamlet. It might be funny and it might be good but it would not be Shakespeare.
That judges are bound by the script has several consequences. To be a good judge, it is not actually necessary to be patient, fair-minded, just or even especially knowledgeable about the law but you must be able to act in those ways when discharging your role. There is, in fact, little room within the role description of judge for idiosyncrasy or individual trait. In many ways, the role is a confining one and persons who take judicial appointments must accept that. It is a job of discipline and often dour application, one in which many of the best reputations are earned incrementally rather than grasped in spectacular fashion. The civil engineer may design excellent bridges but behave without consequence for the result in most unpleasant and even unfair ways. It is the result that matters.
But even the occasionally impatient, the lazy, the arrogant and the ignorant judge can do great harm to the concept of the court itself. For the role of the judge is not just about reaching the right result but equally, at least, about process. Central to citizens’ acceptance of a result given by our dispute resolution system is that they feel that they were heard and feel fairly dealt with. The judge who falls short in process does a special harm to the court. The wrong result can be fixed on appeal; wrong behaviour much less often so.
Because judges can do such damage, they must be accountable; more accountable than they are. Chief Justices may be in conflicted positions. We judges should be subject to the scrutiny and the independent judgment of a judicial commission. The argument that this compromises judicial independence is weak. We are not meant to be free to be ourselves; only to be free to discharge our allotted functions in a judicial way.
Using only words, the media has harmed the Family Court of Australia. Reporting of Family Court proceedings has been sensationalist, inept and irresponsible, and it often purports to speak for the people when at best it expresses the views of a small fraction. Informed and considered comment has occurred but rarely. Several years ago I gathered a number of newspaper headlines:
Who’s to Blame in the Marriage Wars? Bloody Family Court.
The Age, 2004:
The Family Court: How It Can Push Men Over the Edge.
The Age, again, 2003:
Lawyers Despair of Family Court Contact Orders.
The Sydney Morning Herald, 1999:
Family Court Fosters More Bitterness and Recrimination.
Sydney Morning Herald, again:
MP says Family Court Ruining Lives of Families.
And:
The Ugly Mask of the Family Court.
The Age. If only the media would make an effort to distinguish between the very different roles of the legislature and of the courts. If only the media would recognise that in most litigation there are at least two sides. Citizens, to whom the court belongs, should resent those who criticise inaccurately and carelessly. They use only words, but remember, words are all that the court if made of.
I turn to offer some thoughts about the family law concerning children. In a democracy, laws can be expected to soon come to reflect the prevailing views of society. In times of much greater influence of the church upon the state, and when marriage was primarily concerned with lineage and the devolution of property, matrimonial law was very different to what it is now. In the preface to Children: The Modern Law, by Andrew Bainham, first published in 1993, he wrote:
Children law is still in its infancy but is fast coming of age. Twenty years ago, when I first studied family law as an undergraduate, those aspects of the law affecting children were subordinated to the issues surrounding marriage, divorce, property and finance.
The point that I simply wish to make is that views as to what provision the law needs to make for the resolution of issues over parenting change from time to time. A few years ago I developed a niggling thought that our society may not need the children law it had. These meanderings persisted and I eventually put pen to paper to see if I could make out an argument that the law should withdraw altogether from the field of private law relating to children. It seemed an outrageous proposition and when I started to write, the essay was not meant for anyone other than myself. I suspect one should be cautious before being persuaded by one’s own arguments, but I came to think that the arguments were stronger than I had imagined and they led to a paper which I delivered at the LawAsia Conference in 2005, entitled Rough Patches in the Relationship between Australian Society and Family Law: Should There Be a Divorce? It was by far the most controversial topic I had ever spoken about. The paper was completely ignored.
The ideas behind the paper included that there seemed little justification for the differences between, on the one hand, public law relating to child protection and leading to possible intervention by the state, and on the other hand, private law involving litigation between interested persons over parenting issues. The public law is the same for all parents whether separated or not. Private law sees courts being called upon to decide disputes about parenting purely because the parties have separated, and even though some of the same issues are just as likely to arise where the parents have not separated. I questioned whether the state should provide a judge to whom separated parents could abdicate parental responsibility to make decisions for their children, though no child protection issue or concern existed.
As I said, where child protection concerns do exist, the law already provides a remedy. And some other issues with which family law deals, such as the personal protection of people, are also covered by general law, or easily could be. As well, I wondered whether the provision of a forum in which people could litigate parenting issues positively encouraged people to do so, often for misplaced motives. Whether the harm to children – which I accept would be caused by conflict if no forum to resolve disputes is provided – would be any worse than the conflict which exists, notwithstanding that and perhaps because we provide a forum. And whether, when there are no child protection issues involved, we really want a system which may determine an outcome according to mere differences in personality, attitudes and ideas, unquestioned if parents are still cohabiting, but which become points, blows struck or parried, on the judge’s scorecard. As things stand, it cannot be otherwise, but so it is that the existing system both discriminates against and asks too little of separated parents.
Withdrawal from the field of private family law relating to children may not be as radical an idea as it sounds. Though others may not have proposed withdrawal from the field all together, the Family Law Act has been amended on a number of occasions, in ways which may amount to steps taken along the path to withdrawal. The Act now stresses that parental responsibility and involvement with children is expected to continue whether the parties are separated or not. The making of attendance at relationship centres a precondition to the institution of proceedings is another step.
In the years since I wrote the paper, I have doubted that Australian society is ready for the change suggested. Nonetheless, I wonder if the aspiration for our society, and its legislature, should be to develop to the stage where separated parents are left to resolve issues to the same extent as are parents who live together. Short of removing the forum, there may be a number of steps we are ready for. Many issues over which parents litigate perhaps ought not be entertained; contravention proceedings, because the residential parent has been 10 minutes late to deliver the child, albeit persistently; the issue of whether the child joins the Southside Eagles rugby league team or the tennis club at Indooroopilly; the details to be provided before the father is allowed to take the child to Sydney over Easter; the division of Christmas Day.
Should we accept disputes about in which religion a child should be raised or, absent financial issues, which school a child should attend? At the least, there could be a category of matters in which leave to commence proceedings was necessary upon ex parte application to a judge. In the Children’s Act of the United Kingdom, there is provision that:
Where a court is considering whether or not to make an order in relation to a child, it shall not make the order unless it considers that doing so would be better for the child than making no order at all.
A like provision might serve us well. In our society, I think we are rightly concerned when we want to bring about a situation where citizens are bound by orders, that the orders are arrived at through a judicial process, but there may be room for determination of some categories of issues by tribunals, where there is no right of legal representation and evidence is restricted. We don’t mind if criminals have high legal fees, and those few innocent who may be caught up in the criminal law we see as an unfortunate consequence of a system which serves the public interest well. In civil litigation, the parties have likely been engaged in commercial ventures or committed some civil wrong. Legal fees are part of commercial life. Anyway, the successful party usually recovers costs; not so in family law. There is something essentially tragic about good people incurring often ruinous fees for litigation, arising from nothing more than the divergence in personal lives and the issues to which that can give rise.
Family law since the last world war has been under fairly constant review. Sometimes we cry out for a break, but I think policy makers should keep working at it. Any arrangement which includes two courts at different levels having the same jurisdiction will be problematic. I think our Chief Justice and the Chief Federal Magistrate have done all that can be done to foster cooperation, but, eventually, parochialism and self interest will corrode any gains. But the same will apply to two levels of judicial officers with the same jurisdiction, albeit members of the one court. In family law, there is a need for a trial court or a trial division within the one court. There is also a need for a superior court or level. The jurisdiction of the lower court or division must be limited by statute.
Why is there need for a superior court? Firstly, there is the matter of appeals in a specialised area. Secondly, though some hold the view that because a field of law is largely discretionary, it is easier than those in which there is formulaic application of principle. This is not so. In many family disputes, the determination of relevant facts is often such a lengthy exercise that this, alone, requires a high level of skill and concentration. The need to properly identify and determine the issues joined by parties who do not plead material causes of action and then to dispose of those issues supported by a reasoned judgment in a way consistent with values, at least implicitly accepted through the way the parties ran their cases, consistently with what emerges from precedent and in accordance with the Act, would, in certain types of cases, require the judicial skills of a superior court.
Though I have suggested that withdrawal of a forum for many parenting issues is possible, there are matters such as international child abduction, international relocation and authorisation of medical procedures which I think are sufficiently complex to be dealt with at superior court level. In property matters, the questions for decision often run well beyond the mere exercise of a discretion about how property interests should be divided and involve third parties, bankruptcy, trust, equity and corporations law. Commonly, millions of dollars may be at issue. These are matters for a superior court and arbitrary protocols about the length of trials will not properly identify them.
On that note, I end my judicial life in this ceremony. Symbolically, I place my wig on the bench, although wigs, in this court, were, in fact, retired some little time ago. Most people who perform in roles have a costume. It is surprising, for some, how much difference that costume makes. The wig does not necessarily have to be part of the costume, but it did help to have a costume sufficiently striking to visually represent or imply that the acts and decisions are those of a functionary fulfilling a role, rather than determining an outcome based on personal feelings or views. I discard my jabot and my gown.
Although the ceremony has ended, before the court rises, I should like to make some personal remarks, as it seems convenient to do so now. I much appreciate the efforts that the Chief Justice and the Deputy Chief Justice have made to be here and my colleague in the appeal division, Justice Jenny Boland. The Honourable Michael Holden and Margaret have travelled from Perth; the Honourable John Ellis and Geri Ellis from Sydney; the Honourable Joe Kay and Yvonne have come from Melbourne. The Honourable Neil Buckley has travelled much less distance, but made no less effort. I am honoured by the effort each of you has made to be here.
My three sisters, Mary, Marlene and Marcia, and two of their spouses, Gary and Chris, are here, as are my three children; Angus, his wife Michelle, their children, my grandchildren, Madeline and Jasmine; Leah and Anastasia, and her partner, Russell; my stepdaughter, Sarah, and her partner Rick; and good friends, Peter and Pat Wood. I love having my family and friends about me, especially as this is an occasion important to me, but my mother Olive is the only person here truly entitled to say that, had it not been for her, I never would have made it. In whatever endeavour I have been involved, she has supported me, as mother’s tend to do, even if unwisely.
Some people are heard to say on occasions such as this that behind every good man stands a good woman. I do not say that as I do not even claim as true the first premise. Another reason I do not say it is because my wife does not stand behind me, though sometimes I briefly catch up with her. Marilyn has been with me all my judicial career. I am glad she was not a lawyer, but also to add that she is keenly interested in the law, as part of the social arrangements with which we live. This sometimes causes her to ask questions, in answering which I find that I don’t know what I’m talking about. Intelligent but innocent questions take nothing for granted. She has been generous enough to listen attentively whenever I have wanted to discuss work. She has wholeheartedly entered into the social life of the court, which often involved her in much effort which I and many others greatly enjoyed.
I should like to make special acknowledgement of Kath Howes and, later, Trish Zellner, my two long-serving secretarial associates, and of Glenys Douglas, by far my longest-serving court officer. Not only were the three of them excellent in what they did, but they were great company. Indeed, I have received much assistance from many people, all of whom I thank. May I pay my respects to one who is not here. The Honourable Ernie Lambert, a former judge of this court, was buried today. He was 83. He was a wise man. Finally, I am honoured that you came. Chief Justice.
