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E20: Judge Judy talking family law

On the Show Today You’ll Learn

Retired Federal Circuit Court Judge Judy Small is without question our most unique, and broadly qualified guest we have had on this program.  Judy grew up right here in Coffs Harbour and went on to become a globe-trotting folk singer.  She also had a lengthy career as a family lawyer, working for a decade with Victoria Legal Aid and then as a Federal Circuit Court Judge.

We were regaled with stories of Judy’s upbringing on the Coffs Coast and her life as a singer and then “got serious” about family law and discussed the following issues:

  1. Reforms to family law in the 1990s/2000s that changed the focus of the law, particularly relating to family violence
  2. Judy’s thoughts on reform still needed, particularly for Aboriginal and migrant communities.
  3. Discretion for family law judges: liberating or frustrating.
  4. Dealing with “he-said”, “she-said” from the bench
  5. Judy’s advice to someone entering the family law system for the first time:
    • Make sure you are safe.
    • Understand that you are not alone.
    • Have a lawyer that you trust, and who cares.


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Full Episode Transcript

Welcome to The Family Matters Show

Benjamin Bryant: Welcome to 2021 and Episode 20 of The Family Matters show, I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers, and I’m here with my business partner, Heather McKinnon. Happy New Year, Heather. How are you?

Heather McKinnon: Oh, really well, Ben, it’s a bit hard to rev up after a couple of weeks off. But had a fantastic break. Went to South Australia and had my first Covid test at a place called Aldinga, thanks to South Australian Health It’s certainly a brave new world as you traverse the country in these very unusual times.

Benjamin Bryant: And in a brave new world Heather we really need something to look forward to, and this show is a real special one. And I know I say that every month, but this time we have an exceptionally unique guest joining us: retired Federal Circuit Court Judge Judy Small.

Benjamin Bryant: So what makes Judy unique? First off, she’s a local, born and bred in Coffs Harbour and attended Jetty High. Second, she’s an internationally renowned folk singer and songwriter. I bet that’s what you were expecting. She wrote and sang songs of social significance inspired by folk singers like Joan Baez, Peter, Paul and Mary and The Seekers. She and her guitar toured the world for over sixteen years. Her songs were recorded by other popular artists, and many were translated into a number of languages. Judy retired from full time performance in ’98 and became a family lawyer in Melbourne, working for many years with Victoria Legal Aid. And in 2013 she was appointed as a judge with the Federal Circuit Court of Australia. She retired from the bench in April last year. What a life so far. Judy, thank you so much for joining us today.

Judy Small: Not at all, Ben. It’s a delight to be here, and I’m so glad you said so far at the end of that introduction, because, of course, retiring from the bench doesn’t mean I’ve retired from life.

Benjamin Bryant: I’m happy to hear that. Look, Judy and Heather, we’ve got so much to talk about today, so we better get started. But first, I wanted to remind everyone that you can send us questions in confidence to familymatters@bryantmckinnon.com.au or message us on Facebook. And please do share this show with any friends and family who might be starting out on the rather scary journey of separation. The earlier we can be there to provide answers, the better. Heather and Judy, are you ready?

Heather McKinnon: Yes.

Judy Small: Yep.

Life in Coffs Harbour in the 60s and 70s

Benjamin Bryant: Judy, I think we probably need to start where it all began in Coffs. Can you tell us a little bit about life in Coffs Harbour in the 60s and 70s when you were growing up here?

Judy Small: Yes, that’s the period which my great nieces have great delight in calling the olden days Look, it was a very different place. It was a very small country town. I can remember when the first set of traffic lights came to Coffs Harbour and it was a really exciting day. I was born in a little Hospital up on Elizabeth Street that was called Sunnyside Hospital, and I went to Coffs Harbour Infants and Coffs Harbour Primary in Coffs Harbour High. They being the only state schools in Coffs Harbour at the time.

Judy Small: Coffs has developed enormously since then, of course, it was about 10,000 people when I left, and this year marks 50 years since I left Coffs Harbour. I’ve been away a very long time, but I still think of it as home. And the 50s and 60s and 70s were a fairly free time for me as a child growing up. You know, we didn’t lock doors. I spent a lot of time at the beach and I was played sport at school. I was in the swimming team, in the softball team and our hockey team and the debating team and all sorts of things at school, school was a very much the centre of my life growing up school and church. A lot more people went to church in those days than I do now. And then when I got to year 12, which was called sixth form in those days, I went to my school’s guidance counsellor to look at what I might do after school. And basically, he told me that I should do social work or teaching because they’re good jobs for girls. And yes, it was a classic. I was the captain of the debating team at that point. I was doing the highest levels of French and Latin and English, and he told me to do social work or teaching because there were good jobs for girls. I’m sure he was well meaning. But given the background and given my involvement, I would have thought that law might have crossed his mind, but it obviously didn’t. And I didn’t get into law until very much later than that.

Local girl becomes international folk singer

Benjamin Bryant: And so, Judy, how did you go from local girl in regional New South Wales to an internationally renowned folk singer?

Judy Small: Well, it was in Coffs Harbour, of course, that I began to sing. I learned how to sing in school choirs and at church. And when I was about 14, I suppose there was a school folk group, Margaret England, who still lives in Coffs Harbour, is a dear friend of mine and was the school music teacher at the time. And she had a folk group for the boys because the boys always thought singing was a bit for girls. And so she wanted the boys to be able to sing. And so she had this folk group and you could only join the folk group if you were a girl, if you could play an instrument. And so I learnt to play the guitar and Margaret showed me a guitar chord chart and taught me how to read it. And off I went. So it all began in Coffs. And when I left Coffs, I went to Sydney to go to university and while I was there, I started singing in folk clubs around Sydney as they had them in those days, and it sort of grew like Topsy from there. And in 1982, I was working in the public service in New South Wales at the Legal Aid Commission, actually, and I left that to try my hand. I left Australia in the middle of 1982 and I left a thousand dollars in the bank in Australia, which was quite a lot of money in those days, and decided I would see whether I could make it as a singer and songwriter. My career had been developing in Sydney and I’d been asked to sing in other cities and at national folk festivals. And so off I went on my quest around the world and got to sing at some really lovely places like the Vancouver Folk Festival.

Judy Small: That’s where it really all began for me. I was there not as a performer but as audience. And Eric Bogle, the great Eric Bogle of Australian folk legend now, was playing at that festival and he became ill and he asked me if I would step in for him at a workshop to sing a few songs on a particular topic, which happened to be the ravages of war. And so I did that. I sang, I think, two songs or three songs in this workshop, and it all sort of sprang from there. I met a lot of people as a result of that workshop and people asked me to come back to North America, and that’s where my North American career began. So that’s sort of how I came from Coffs and playing the guitar in the folk group to playing internationally.

Coffs Harbour Education Nurtures Outstanding Adults

Heather McKinnon: I was just going to say it’s such a fascinating link when you talk about Margaret England. I’ve worked with Margaret on continuing to develop, sort of cultural infrastructure for kids. And it’s fascinating to look back and have a sense of the influence of one person like Margaret over decades of children who’ve come through the music education system in Coffs. It’s really important that we remember how nurturing communities like Coffs have produced such outstanding adults

Heather McKinnon:  The other thing that Judy and I were talking about Ben was Bob Brown went to Jetty High. And I think it’s really interesting that Coffs High produced these Australian leaders And I think a lot of it came down to the quality of the teachers that were here at that time.

Judy Small: Yes, I’d agree with that. I think there are quite a few Coffs Harbour High alumni who have gone on to bigger and better things. Frank Walker, the former attorney general of New South Wales in the 70s and 80s, was a Coffs Harbour High alumnus. And there are so many more. Bob Brown, as you say, I think he was in my brother’s year in school and he lived fairly near to us just a couple of blocks away. So, yes, I think Coffs has produced probably even disproportionately has contributed to the social and political and legal life of the country.

Becoming a family lawyer

Benjamin Bryant: So, Judy, I have to ask, what inspired the globetrotting folk singer with a 20-year music career to become a family lawyer?

Judy Small: That’s a very good question. One of the reasons I had gone singing was because I was twenty-nine and I thought I’d been singing around the folk clubs in Sydney, but I was working full time. First as a psychologist and then as a community educator. And I thought, I don’t want to wake up at 40 and think I could be a really good singer if I’d tried. So that was what sent me off to do singing full time in the first place. And I got to that same stage. I’d studied law. That’s the other thing I’d done on the way through while I was singing. I had started my law degree before I went singing full time and finished it during that time. And so I got to a point of A) not wanting to travel so much and B) thinking I don’t want to wake up at 50 and think I could have been a really good lawyer if I tried. So I went and became a lawyer. And family law, partly because a lot of the work that I’d done as a psychologist was with families So I was interested in family structures and dynamics. And that’s what I think led me to family law. It was the only kind of law I ever really considered practicing.

Family law reforms

Benjamin Bryant: And, Judy, I think you did almost a decade with Victoria Legal Aid, working with a lot of families at risk, and I understand that you were involved with a lot of law reforms. Can you tell us about these reforms?

Judy Small: Well, all Legal Aid lawyers are involved in law reform. It’s one of the joys of working at legal aid commissions that you can do other than just practice. Not that the practice isn’t important. Of course it’s vital. But you get to do all these mind broadening things like law reform submissions. And I was at Legal Aid in Victoria at the time of the 2006, I think it was, family law amendments which brought in what we used to call the unfriendly parent or the friendly parent rules: which meant that a resident parent, was punished, I guess, if they did not want their children to be spending lots of time with the other parent.

Judy Small: And that led to quite a lot of family violence being kicked under the carpet because women particularly were afraid to say that they had experienced family violence. And that was the reason, because part of those amendments was also the fact that if you alleged family violence and couldn’t prove it, that would go against you in court. And of course, family violence is very hard to prove. It’s usually only two people there at the time, although there are often children involved too. And so it was thought by many people, not just people in legal aid commissions, but many people that that needed reform, that that was very dangerous for women to have to hide the fact or to have an incentive to hide the fact that they were suffering from family violence.

Judy Small: And I think it was 2012 that the reforms came in that changed the law, so that the major issue in relation to children’s matters was keeping children safe. And it wasn’t about whether a parent was being, you know, a friendly parent in inverted commas. It was about and still is about keeping children safe. And that’s what it’s always been about as far as I’m concerned, and it’s now very clear in the law.

Family law reforms are needed in the future

Benjamin Bryant: And Judy, in May I ask if you were still with the commission, what would be the areas of reform you’d be interested in looking at now?

Judy Small: Well, I think there’s still a lot of a lot of work to do in terms of people’s experience in the court, particularly of our First Nations peoples. Some courts, some registries of the Federal Circuit Court have Aboriginal lists where the procedure is much more informal. And, there is some effort made to make Aboriginal people feel less, what’s the word, less threatened by being in court. Or intimidated. Courts have never been places for Aboriginal people to feel safe. And so there has been that kind of reform. I think that should be that should be rolled out across the courts in general, not just the family law courts, but other courts as well. And, of course, it is in lots of places.

Judy Small: And then there’s the issue of migrant communities and non-English speaking culturally and linguistically diverse communities who find it difficult to navigate the system.

Judy Small: When I was at Legal Aid in New South Wales, it was called the Legal Services Commission then, and we had as one of our training programs for the duty solicitors, we held a hearing where the defendant was someone who had been on holidays in Italy and had accidently hit a cow while driving along the road, and they’d been charged with various offences. And so we held their trial fully in Italian with that person, the defendant, having an interpreter. And it brought home to the solicitors and to me watching it how incredibly difficult it is for people whose first language isn’t English to navigate a system like the legal system. And so I think there’s still a lot of work to do to make those people whose cultural and linguistic background puts them on the back foot before they even enter the door. I think there’s a lot of work to do in that area.

Judy Small:  The Family Law Act is a moving feast. It’s an organic document. And I think it ought to change as times change and as people’s views change and as the culture’s views change. I mean, the kinds of things that are in the Family Law Act now would not even have been thought of, for instance, in the year that I left school. In nineteen seventy-one we still had fault divorce. You still had to prove that the other party had done you wrong somehow by being by deserting you or by being abusive or whatever to get a divorce. And of course in nineteen seventy-five that all changed with the Family Law Act. So the law has changed enormously, enormously over that time. And I think it’s heading in the right direction when it’s looking at addressing family violence and addressing it as a social problem and a political problem as much as a legal problem. Family violence is now, I think, the core business of the family law courts. Justice Linda Dessau, who was a family court judge until about 10 years ago or seven years ago, and who is now, by the way, Victoria’s governor, once said that that she thought child abuse was the core business of the family court. But I think that’s been overtaken by family violence in general now. And it’s a matter for comment when a matter comes before the court that doesn’t have instances of family violence in the evidence.

Family lawyers need to care

Heather McKinnon: I can’t help reflecting on the issues that you’ve spoken about. I also did the vocational guidance testing in Tamworth in the 1970s and the guidance teacher said I should be a social worker. But I really think it’s interesting to look at how family lawyers are at the cutting edge of social reform and the old guidance test probably picked that up in our system all those years ago, because they didn’t have family lawyers then. But it is really interesting that the work that our profession does in putting a microscope on what are the issues that are impacting?

Judy Small: I think that’s right. And I think that people who have a bent, if I can put it that way, towards things like social work, people who are interested in the way families behave, in the structure of families, in the dynamics of families, I think they make the best family lawyers. People who see it just as a legal process, I think make efficient family lawyers. But they’re not the best family lawyers. The best ones are the ones who actually understand what’s going on in families and who not only understand it, but care about what’s going on in families and particularly for children.

Benjamin Bryant: And Judy, in 2013, you were appointed to the Federal Circuit Court of Australia. Judges have a great deal of discretion in family law. Once you were on the bench did you find that discretion liberating or frustrating?

Judge discretion:  liberating or frustrating?

Judy Small: It’s a very good question. It’s both. It’s both. And both in the same case Look, the discretion isn’t entirely unfettered, of course. When judges are sworn in, they take an oath and the oath says that they will do right by all manner of folks according to law, without fear or favour, affection or ill will. And I took that oath very seriously that you have to do right by all manner of folks according to law. So while there is quite a large discretion, quite a wide discretion for family law judges, that discretion is circumscribed by the law. So, for instance, in a property case, I can’t just say, “Oh well, she owned that property first so she can get it in in the division because I like her better. I can’t…a judge can’t do that. Obviously. There are rules and things that need to be looked at before you can make a decision. And it’s the same with children’s matters. You know, there are sections of the Family Law Act that guide judges in coming to their decisions, in what they need to address in coming to those decisions. So sometimes it’s actually been liberating to have the discretion, but sometimes it has been frustrating.

Judy Small: It’s very difficult sometimes to prove that something has happened. But we don’t have to prove in the family law court, it being a civil court, we don’t have to prove something beyond a reasonable doubt. It only has to be proved on the balance of probabilities. In other words, something has to be proven that it is more likely than not that it happened. So that’s a very different level. And that gives the judge quite a bit of discretion.

Judy Small: For instance, if you think someone’s not telling the truth, you can’t actually say so unless the evidence is pretty overwhelming. You can say, for instance, because of these reasons, I prefer the evidence of this witness to the evidence of that witness. And therefore, I believe that this piece of evidence or this issue, I believe this person or I put more weight to that person’s evidence.

Judy Small: Only once in my seven-year career did I ever find that someone had been lying because the evidence was so clear that she’d been lying. There just wasn’t any question about it in my mind. But the discretion is freeing because you don’t have to do what the parties want. You don’t even have to make orders that are orders the party seek. You can pretty much make what orders, according to law, are in the best interests of children or which will provide a just and equitable outcome in property matters.

Dealing with “he-said” “she-said” from the bench

Benjamin Bryant: Mm. But still it must be incredibly difficult, even with parenting matters, when we’re talking about such an impact on the lives of children. And as you’ve said earlier, things like family violence there’s barely any evidence, it’s “he said, she said” most of the time and with the balance of probability and preferring somebodies account over another party’s account…,

Judy Small:  You can’t just prefer it without reason. You have to say because of these reasons I prefer this person’s evidence. You know, and in a family violence case, that might be an intervention order being in place after a trial has been held. So that person has been found to have committed family violence. It might be bank statements in a property matter that show that one person isn’t being entirely honest about their financial situation.  You need to have reasons for preferring someone’s evidence. But, yes, often it is “he-said she-said” and that is very, very difficult People can be incredibly persuasive in the witness box who are not telling the whole truth, having yet sworn to do so. So it is hard.

Judy Small: I had a case, right in the beginning of my judicial career, where the family violence allegations were so specific and detailed and had lasted over a period of a year or so. This is a very new couple who’d had a child, of course, and I ended up setting out all of that evidence, in my judgment. It was a very long judgment. And once I’d set out all the evidence that “he said” and all the evidence that “she said”, it was clear to me that there had been, what I called in the judgment, domestic terrorism. That he had kept her under surveillance. He had tapped her phone so that he knew where she was at any time If she were going out to have coffee with friends, he would follow her and sit across the road in the car to make sure that she wasn’t having coffee with men. He would pull her down the corridor of the house by the hair. Now, he denied all of that, every bit of it. But I was convinced, partly by her demeanour and partly by the detail of her evidence, that it had occurred, and I’m still convinced, absolutely convinced that I was right in that case. And that child is not seeing that father.

Advice for those entering the family system for the first time

Benjamin Bryant: Wow. Judy, one last question for you. With your incredible life experience, what might be one piece of advice you would give to someone entering the family law system for the very first time?

Judy Small:  First of all, understand that you’re not alone. That’s the first thing I’d say to them. That people separate and divorce and go through these proceedings all the time.

Judy Small: You need to be able to trust your lawyer if you’re getting a lawyer. And it’s scary. The legal system is not something that is familiar to most people.

Judy Small: And I’d say to them, you will need to get your evidence together. You will need to find documentary evidence that supports your case, and you need to keep yourself and your children safe. And that applies not only to women, I’m not saying for one moment that family violence is always perpetrated by men. And it’s important for families to keep themselves safe. I think that’s actually probably the first thing I’d say to them. Make sure you’re safe. And then I’d say find a family lawyer who cares about what they do and who cares about you.

Judy Small: I remember once on the bench, a father being terribly upset and going off the air a bit and saying, “what do you people care about me?” And I said to him, “Mr. So-and-so, right here, right now in this courtroom, nothing matters to me more than the safety of your children.” And he stopped and went, “Oh, OK” and was much more amenable to being talk to. The safety of families is something that is, I think, an incredibly important part of family law, and that’s the kind of thing I’d be saying to people, make sure you and your children are safe. Find a lawyer who cares about what they’re doing and isn’t just putting you through the system and know that you’re not alone in this.

And that’s a wrap….

Benjamin Bryant: Hmm, that’s some real practical advice. Thank you so much, Judy, and thank you for being on our little podcast program.

Judy Small: That’s alright, it’s been an absolute pleasure. If it hadn’t been for Covid, I would have been up there today.

Benjamin Bryant: And we would have loved having you.

Judy Small: It’s only been an audio thing, but thank you very much for having me. I’ve enjoyed it very much.

Benjamin Bryant: And Judy has graciously allowed us to have a recording at the end of this program of her song, Mothers Daughters Wives. Not only is it a personal favourite of Heather’s, but I think it’s pretty apt for this show.

Benjamin Bryant: Heather, what did you think about the show?

Benjamin Bryant: I just loved it because obviously I’m a big fan of Judy’s and my whole professional career has been about trying to improve the outcome of kids in this area. So for me, it was a really big honour. And I can’t wait to get Judy up here personally to do some more hometown return work for the community that produced her. So thanks very much, Judy.

Benjamin Bryant: And I must say, what a great show to start the New Year. Next month, Heather and I are going to talk about the first steps in separation. It’s such a scary and uncertain time when you first start thinking about a divorce and separation. Usually you’ve had no past experience with family breakdown or family law and have no idea what to do or who to go to for advice. You may not feel ready to talk to a family lawyer, but you still need to know the facts. So we are going to try and nut out some general advice for those starting down the path of separation. If you or someone you know is just starting to think about separation, then please don’t miss this next show. As with all of our shows, we really encourage our listeners to share the episode with friends or family who may benefit from our discussions. A final reminder that you can send feedback or questions in confidence to familymatters@bryantmckinnon.com.au or message us on Facebook at any time. If you go to our website and find Episode 20, you can access a full transcript of today’s show. We hope you enjoyed today’s show and I wish all our listeners a safe and happy 2021. Here is Judy Small with Mothers Daughters Wives.

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