Courts worldwide handle divorce and children differently, and Australia’s system is one today’s guest knows well.
On today’s episode of Children First Family Law, Krista welcomes Justice Tom Altobelli, a family law judge from Sydney, Australia, who has served as a leader of international organizations focusing on doing divorce better. Justice Altobelli is a former professor at Western Sydney University and has been on the bench since 2006, rising to the Federal Circuit and Family Court of Australia in 2020. In 2023, Justice Altobelli was appointed as a member of the Order of Australia in recognition of significant service to the law and legal education. He is also the author of many books and articles, focusing on children and the law.
Krista and Justice Altobelli’s conversation starts by highlighting his long career in family law, beginning with his experience as an attorney and then as a professor. Justice Altobelli outlines the court structure differences between the United States and Australia, the evidence rules Australia created for less adversarial court procedures, and dispute resolution rules that have changed since 2006. He explains Child Impact Reports that can aid in the dispute resolution process, the role of Independent Children’s Lawyers, and Australia’s unique process of triaging families based on the circumstances of individual situations. Krista and Justice Altobelli discuss the oddities of the U.S. family court structure and Justice Altobelli’s work in understanding the effect that being caught in the divorce crossfire can have on children.
The structure of family courts may differ around the world, but Justice Altobelli underscores that people around the world seek to put children first and ensure they aren’t caught in their parents’ crossfire.
In this episode, you will hear:
- Justice Altobelli’s background as a former professor at Western Sydney University and attorney in Australia and his experience on the bench as a family court judge since 2006
- Court structure differences between the United States and Australia and other countries
- Evidence rules in Australia that create far less adversarial court procedures
- How these new rules have improved the speed and efficacy of family law cases
- Dispute resolution rules before 2006, and the change in the importance of mediation
- The focus on empowering, encouraging, and educating parents to settle cases about their children outside of a courtroom
- The blending of all issues in the dispute resolution process and the Child Impact Reports that arise out of this process
- Independent Children’s Lawyers and when they are assigned to a case
- Triaging cases based on the individual circumstances of each one
- The oddities of the U.S. family court structure and the influence of the emphasis on individual rights
- Why children generally don’t come to court in Australia
- Trends internationally in family law and the commonalities that countries often share
- Justice Altobelli’s work in understanding the effect of children being caught in the divorce crossfire
- The reality that fears persist from lawyers and judges regarding loosening evidentiary rules in family law courts
Resources from this Episode
www.childrenfirstfamilylaw.com
All states have different laws; be sure you are checking out your state laws specifically surrounding divorce. Krista is a licensed attorney in Colorado and Wyoming but is not providing through this podcast legal advice. Please be sure to seek independent legal counsel in your area for your specific situation.
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Family Law Across Continents – A Global Peek at Australia, the US, Japan, Italy, Germany, & Others with Justice Altoelli Podcast Transcript
Justice Altobelli 00:00
And in those high conflict cases, I’ll remind parents that what I am seeing from the bench is that each of them are in trenches and they are firing at each other. They’re throwing hand grenades at each other, and they’re not noticing that the kids are in the middle and that they’re caught in the crossfire, and that the damage that they are suffering, which may not be visible, it may not be physical wounds, it’s the psychological wounds that damage may be present and continue and possibly get worse long after mum and dad have got over it, and you know, just remind them about the risks, and just ask them to reorientate, just to think again, to step back from the precipice. I talk to them about trajectories in children’s lives and how even the slightest changes in how parents act after separation can change the trajectory of a child’s life for better or for worse. Again, this is part of the parental education function that I think many of my judicial colleagues and family law feel that they have and responsibly exercise
Intro/Outro 01:22
Welcome to the Children First Family Law podcast. Our host, Krista Nash, is an attorney, mediator, a parenting coordinator, and child advocate with a heart to facilitate conversations about how to help children flourish amidst the broken area of family law. As a child advocate in demand for her expertise throughout Colorado and as a speaker on these issues at a national level, Krista is passionate about facilitating and creatively finding solutions to approach family law matters in a way that truly focuses on the best interests of kids. Please remember this podcast is provided to you for information purposes only. No one on this podcast is representing you or giving you legal advice. As always, please enjoy this episode and be sure to like, subscribe and share the podcast with others you think would benefit from this content.
Krista Nash 02:11
Today, on the podcast, we welcome justice. Tom Altobelli, a family law judge from Sydney, Australia who has served as a leader of international organizations focusing on doing divorce better. A former professor at Western Sydney University, Justice Altobelli, has been on the bench since 2006 rising to the Federal Circuit and Family Court of Australia in 2020 in 2023, he was appointed as a member of the Order of Australia in recognition of significant service to the law and legal education. He’s also an author of books and articles too numerous to count, with a focus on children and the law, he shares with our audience real ways Australia has found innovative strategies to do divorce better. He’s passionate about keeping children out of the crossfire of parents divorces and keeping children out of the crossfire. Happens to be the title of one of his books, family law, practitioners and legislators in the United States and other countries have much to learn from the Australian courts and parents everywhere will benefit from justice. Altobellis, sage wisdom from decades of navigating divorce wealth. Welcome today to the children. First Family Law podcast, I am so grateful today to have with us Justice Tom Altobelli, hailing us all the way from Sydney, Australia, where I believe it is early morning there, is that correct? Welcome.
Justice Altobelli 03:30
That’s right, yes. Thank you. Great to be with you. Krista, thank you for the opportunity.
Krista Nash 03:34
Thank you. Looks like we got our time zones right. We were worried that we would somehow mess this up. So I’m glad it’s not the middle of the night there. So I am so honored to have Justice Altobelli with us. He has been on the scene in the United States and internationally, I think it’s fair to say, in the association of family and conciliation courts. So has a lot to share about what’s going on in various countries, and especially comparing Australia to the United States and how we handle family law in both places, and also has been on the bench handling you said, I think five years exclusively family law and 14 before that in the Sydney area, doing family law. Is that correct? Correct? Yeah, wonderful. Well, first, I think we should maybe just start with a small disclaimer. Correct that he is appearing here in an individual capacity with a lot of knowledge of his work down in Australia, but not giving any sort of sense of how he might rule if litigants came before him. Is that correct? Your Honor,
Justice Altobelli 04:30
Absolutely. The context is education, professional education, and I’m just sharing from my experience, and certainly not suggesting what might happen if a particular case came to court before me or anyone else for that matter.
Krista Nash 04:44ell, tell us a little bit. Judge. First, did you work as an attorney? What’s the path to becoming a judge?
Justice Altobelli 04:52
So I was both an attorney and for the 10 years before my appointment as a judge. A family law professor, a family law professor at a University in Sydney that was in parallel to practice. So as I say, it was 25 years in practice before I was appointed as a judge. Initially, that was what we call back then, a federal magistrate that then became a Federal Circuit Court judge, and just over four years ago, I became a justice of what was then the Family Court of Australia. It’s called something else now.
Krista Nash 05:31
Does Australia have separate family courts? Separated from because the United States, like in Colorado, we do not. We have our judges rotating constantly. We don’t have a dedicated family in the Court bench.
Justice Altobelli 05:44
One of the big differences that I’ve noticed in all of my interaction with my fellow United States and North American judicial officers is that in Australia, we have a Specialized Family Court. It has been since 1975 The other big difference is that family law in Australia is largely federal law, whereas in the United States, correct me if I’m wrong, Krista, but each state seems to have its own family law, either in one statute or in seven statutes.
Krista Nash 06:18
We have some uniform statutes that have been adopted, for example, parental kidnapping. There’s some uniform code, but it still has to be adopted in through each state, though, yep,
Justice Altobelli 06:28
So that means that across this country of ours, and incidentally, some of your viewers and listeners might be interested to know that Australia is about the same size as mainland United States. So we’re talking a vast area for one court to cover. There are some tweaking that happens in Western Australia, but the Family Law Act applies right across Australia. And the interesting thing that might surprise us, listeners and viewers, is that our population is about 26 and a half million people. So we have 26 and a half million people in the same space as you have the entire mainland United States. And can I tell you that presents challenges in terms of access to justice, getting judges where you need them, and all of those types of issues.
Krista Nash 07:24
I was saying when we started, as we were prepping for this, that my sister studied in Australia decades ago in Perth, and so I was personally very experienced having trying to see it’s just like coming here and trying to see New York City and Los Angeles in the same trip, because we went to Sydney, and then we made our way to Perth, and it really is the same size, pretty much, almost exactly the same size of the United States, interestingly. So that is a vast amount of geography to cover with that, but that uniformity could be really good in a lot of ways. And I think the reason in the United States isn’t this way is because, you know, these sort of personal issues in our United States system became issues of the state. So issues of the family became states issues, recognizing that our states are so different, different values, all sorts of different things happening. It became a state issue very, very squarely. But you were also sharing with me too that the rules of evidence are different. So tell us a little about that, because I’m a huge proponent that we do need to really change this in our system, and in Colorado, actually, we are having new rules are making their way through the legislature right now, with a lot of pushback from our judicial officers to loosen the rules of evidence in family court. And I was, I think I might be too saturated in my own podcast and my own echo chamber, because I was so surprised that people weren’t championing this as well. They’re worried about considering the wrong things or making it seem that they’re considering things they don’t think they should under a regular evidence system. So talk about that a little bit.
Justice Altobelli 08:56
Yeah, yeah. Okay, look, we had this discussion. Oh, gee, I think it’s over a decade ago. So we’ve had what’s called less adversarial procedures in- I’m going to call it kids cases and children’s cases for quite some time. And as part of the implementation of less adversarial procedures, we made some very significant carve outs from our Evidence Act in kids cases. And the reason why it was this, let’s say, back in the old days, the Dark Ages, I’ll call it, I was starting a five day complex parenting case on a Monday I would spend all of none day adjudicating on objections to evidence which almost everybody in the courtroom knew would not make the slightest difference to the outcome of the case. Now with that reality, we simply said, Look significant. Parts of the Evidence Act are not going to apply. For example, the rule against hearsay, the rule about relevance, of course, still is very, very important, but a lot of those less important rules were abandoned in favor of saying to the judge, well, look, you assess the weight that is to be given to all relevant evidence in this case, and do it in a transparent fashion. In your reasons, I think in the United States, you call it the opinion, we call it a judgment, that in both documents, it’s about explaining your reason. Just be transparent, explain why you have chosen to give more weight to this piece of evidence rather than that piece of evidence. In many ways, the process isn’t all that different from what we do when determining admissibility under the evidence rules, anyway, but we don’t do it in a fashion that takes up unnecessary time. So nowadays, in a complex parenting kids case, some if there are objections, I require them to be identified well before the hearing, I require counsel to consult and try to reach agreement about those objections, and in relation to what’s left over, I will adjudicate on them often before I come onto the bench on the first day. So we have recovered a whole day that can be usefully applied for the purposes of the relevant evidence in this case. And it’s just made things so much simpler. We are on the verge, I think, within a matter of weeks, extending this, what we’ll call the less adversarial approach to our financial proceedings. And let me tell you, there is fear and trepidation amongst the ranks of the leading family lawyers and counsel in this country. They think the sky is going to fall around them because we’re doing this. Well, that’s not the experience in kids’ cases. I don’t think it’ll be the experience in financial cases as well. It works to any of my judicial colleagues in North America who might be listening. Don’t be afraid of this. Is going to make the task of finding what is in the best interest of the child easier, not harder, and it’ll make proceedings much more efficient and effective, and I think lawyers will love it too.
Krista Nash 12:29
So is that true across all of your cases? Is this universally how they are handled? I ask it in that form, because in Colorado, we’re talking about changing these only for non represented parties, for pro se parties? No, you use it across the board. So even if you have two very adversarial lawyers, it’s still the same evidence, white rules,
Justice Altobelli 12:51
yeah, that’s right, that’s right. You know, talking about adversarial lawyers, Krista, this has helped change the culture, by the way, because instead of commencing a five day difficult case about kids in this highly adversarial context that is based on Black Letter objections to technical rules based on technical rules, we focus on the substance. We just get down to business sooner, and it’s a much better system, in my respectful opinion.
Krista Nash 13:22
Well, I might have to drag you around to talk. I don’t know who we have to influence here to get this done, but I work as a child advocate, and I have to do all kinds of circus tricks with most judges to get information in, even though it’s clearly reliable information, right? And I have an unavailable declarant right. To me, the hearsay rules are one of the biggest reasons that we don’t get information about children in the way that gives us the most information so that the judge can make a good decision. And honestly, the blocking of all of these statements makes it so that it is more adversarial because we can’t get all the right information to the judge, so it’s less likely to settle and for people to come up with their own solutions. I think, have you done any statistics on whether you think that those changes to the rules have helped cases? You said it’s helped the culture, which I think is amazing, but has it also helped people settle more or have fewer cases come to court.
Justice Altobelli 14:22
I’m not aware of the research. I can tell you, just from experience, it hasn’t reduced the number of cases coming to court. Interestingly, in Australia, we’ve tried so many different things, some of which we might talk about, including Compulsory Pre-Filing, mediation and things like that. It hasn’t reduced the number of cases coming to court. I would be very surprised if this sort of initiative has had any impact on the frequency, the rate of litigation. It’s just made it easier to get cases in, through and out of the system.
Krista Nash 14:56
How long do cases take, generally, in Australia.
Justice Altobelli 15:00
yeah, yeah. Tough question, the cases take too long. Krista Nash 15:03
Maybe start answering that by walking through that process, because you have some things that we don’t see in North America as frequently. So go ahead and maybe go back to what you were talking about before, about the Compulsory Mediation and the various things that you have to try to get under. You talked about family. What is it? Relationship centers tell us about that, right?
Justice Altobelli 15:23
Let’s go back to 2006 so 2006 is the year that I came to the bench. In 2006 we had some major amendments to the Family Law Act that introduced the concept of shared care. We’ve now changed that. But at the same time, in 2006 we had Compulsory Pre-Filing Dispute Resolution, we had reportable therapeutic interventions provided by the court, and we had the establishment of what was called Family Relationship Centers right across Australia, the whole concept of the family relationship center or the FRC, was that it was the first stop for separating couples. In fact, it was the first stop for any relationship that was in difficulty. There you could get counseling, you could get mediation, you could get referral to specialist services. You could just get information about the process of separation and the impact on children. All of this was government funding. All of this was meant to be highly accessible to everyone. It was low cost or no cost, depending on the financial circumstances of the parties before anybody could actually come to court, they would have to get a certificate that was signed by a family dispute resolution provider that certified that they had not just attempted map settlement, but they had done so in good faith. So back in 2006 we see an enormous investment of resources by our federal government, aim of which was to try to keep people out of court, to encourage them to settle without coming to court, and to just lower conflict. I think, though the government was hoping to possibly, you know, reduce the number of families and relationships that were actually breaking down, I don’t think that that happened, but it made the experience of people starting that process much, much more positive. And I know that in all the children’s cases, there was this unequivocal focus on what’s best for the kids. What’s best for the kids? How can we navigate this incredible change in our lives whilst doing the least damage to them? Now, the interesting thing is that, you know, I’m talking about compulsory pre filing dispute resolution. Kristra, I suspect you have a deep interest in dispute resolution, as I have. And I started mediating relatively early in Australia. I was one of the very early lawyer mediators. I think I did my first mediation in 1990 something like that, which for us was pretty early on in the piece, at a time when a lawyer doing mediation was regarded with deep suspicion. But that’s changed enormously, enormously. So the importance of mediation has grown over time. Back in the 90s, there was a vibrant debate here, and I suspect in North America and in other parts of the world about how you could possibly make mediation mandatory. Now we’ve worked through that. We don’t make settlement mandatory, but gee, we make attempting to settle, participating in a process and doing it in good faith, mandatory, and even once you come to court, if you think that’s the end of trying to settle things, well, you are sorely mistaken. You’re going to be disappointed, because at every every stage in the litigation pathway, from the time you commence proceedings in a family court in Australia to the time that you come before me and Kristar, I’m the end of the line. I see you know that probably four or 5% because our system has facilitated the other 95% of people who commence proceedings, has facilitated settlement, because that’s the focus, empowering, encouraging, educating parents to settle cases about their children with assistance that’s provided by highly trained in-house Court lawyers. We call them registrars and counselors. We call them court child experts, and I think it’s a little testament to the system that we have, that you know, somebody like me right at the end of the line, so to speak, is only seeing four, maybe 5% of those cases, and when they start the case before me, what do you think is going to happen?
Krista, I’m going to talk to the parents and just remind them about what is going to happen, how this is going to affect them, how it’s going to affect their children, and how even now, it is not too late to take back control of this conflict. I tell them, Listen, you’re the expert about your children. I may well have the responsibility to make a decision, and I’ll do that, drawing on all my experience, I assure you, but I’m still not the expert when it comes to your children. You are so the focus on settlement starts before you enter the court system and doesn’t stop even on that first day of the final hearing, when somebody has to make a decision for you, I think it’s one of the real virtues of our system. It’s not perfect. It takes too long. That was one of the questions you asked a while ago. Unfortunately, it can take two, three, sometimes four years, depending on where you are in Australia, to get from that point to a final hearing.
Krista Nash 21:24
Mayve that’s a good thing, though. It makes them settle. They get so tired of it that they’re like, at least we can settle. So when you said you’ve got all these various steps of mediation or the collaborative process that comes in, does everyone have to go through the family relationship centers first, you said they have to give a certificate.
Justice Altobelli 21:41
Yeah, because of the vast number of people we’re talking about and probably not having enough family relationship centers, it’s possible to go to family dispute resolution privately. So we have a vibrant private profession of family dispute resolution providers, and they, too, can provide the certificate that enables you to file.
Krista Nash 22:03
It’s interesting because we have Compulsory Mediation in Colorado, and I think this is pretty consistent across the United States, but it is only compulsory if you want to avoid a hearing. So I started doing this mediation work, and I was so dissatisfied professionally with it, because so many people are just checking that box before they run off to a hearing, and they’ve already done a lot of work of digging into their positions because it comes so late in the process. So I think it’s really a brilliant approach to do it early, to get people to sit down and look at each other before they get too far down their entrenched paths. And do you think that’s made a big difference that they’re talking to each other earlier in the process?
Justice Altobelli 22:50
Absolutely, absolutely. And the other significant fact is that even if they commence proceedings, even if they did just take it as a ticker box process, what do you think is going to happen when they get to court anyway, they’re going to be confronted with that same requirement to focus on settlement for the benefit of your children.
Krista Nash 23:10
You talked about the professionals that are helping guide these people. You have both somebody who helps focus on the children and the children’s needs, or is that and someone is helping with the financials or the law, or is that all blended into one?
Justice Altobelli 23:26
It’s all blended. So for example, if the case that come into court, comes to court involves both issues about the kids and finances, dividing property, etc, then you’ll have, for example, a team of a registrar, a legally trained registrar who can both assist with the parenting but also help with the financial part, doing the reality testing of what is likely to happen, working with a court child expert who provides this education about the children, often by the time we get to this dispute resolution process that involves both a therapeutic expert as well as a legal expert, the child has already been interviewed by another court child expert at an early stage of the proceeding, who’s produced a short report. We call them Child Impact Reports, and those reports contain such valuable information and insights that is then used in the context of dispute resolution, and certainly by the judicial officers who handle the case to help mums and dads refocus on what’s in the best interests of their children. So there’s all sorts of things coming from different angles that are designed to help moms and dads focus on on their kids and not so much what they themselves want are the child court experts.
Krista Nash 24:49
Are those people, mental health professionals who work for the courts? Or are they private?
Justice Altobelli 24:57
The people who are involved during court process are all employed by the court. We use external court child experts to provide reports or evaluations, as I think they call it in North America, and that’s just a pragmatic reality that the court hasn’t got the resources to provide evaluations for every case that comes before mind. You Krista, the reality is that there are some litigants who can afford to have external evaluations done, and they’re encouraged to do so, but for those who can’t, they get the same incredibly high level of technical expertise through the in-house experts that are provided to them at no charge.
Krista Nash 25:47
So any case that would that be for any case that has children correct, that hasn’t settled, you have an internal person paid by the government with the courts who will interview children and provide these child impact reports?
Justice Altobelli 26:00
Yes, that’s right. And that same child, or kids, they might have what we call an independent children’s lawyer. It is what it sounds it is an independent lawyer either provided through the legal aid commissions of each state or paid by the Legal Aid Commissions, even though they are private family lawyers who do the task.
Krista Nash 26:25
Probably similar to what I do. That’s the best interest attorney, absolutely right. Yep. Do they get appointed when the parents can’t get it together themselves, correct?
Justice Altobelli 26:38hey’re appointed by court order as well. So an assessment is made by a judicial officer at the very early stage of the proceedings as to whether or not an ICL, we call them, Independent Children’s Lawyer is required.
Krista Nash 26:53
So you can triage things a little bit more. You can say this case has a lot. This family is going to have a lot of it’s going to be a harder case. So we should assign someone to this, not just the child impact reports.
Justice Altobelli 27:04
Yeah, you’ve mentioned the word triage. Can I tell you a little bit about how we do that here? Because I’ve got to tell you, I’m, I’m super proud of our triage system in Australia. I think it’s very sophisticated. I think with the increasing prevalence of family violence cases that come before us, that is cases that involve allegations of family violence, especially coercive and controlling family violence, we have a triage system that facilitates the early identification of those cases that provides support to the victims, that fast tracks those cases along a particular pathway, so that early judicial intervention can be applied. And this is a work in progress. We are constantly refining it.
Krista Nash 28:02
So who’s reviewing the case to get it into the right lane? Do you have somebody who you know, is it?
Justice Altobelli 28:09
Yeah. How does that happen? Yep. So data is collected online. That data is kept confidential. For example, if that case were one of the very few that actually comes through to me for for adjudication, even I cannot access that data that is provided. Now you understand why the person who is disclosing this information can be absolutely confident that it isn’t going to leak to who the person?
Krista Nash 28:42
Somebody can go in and say, I’ve been in an abusive situation. I’ve been financially controlled. I’ve been Yes, the dog is being attacked, kicked by my husband, etc. These sorts of things that we see the children are at risk. And those things don’t even have to come even to you.
Justice Altobelli 28:59
I will find out about it, but I will find out about me, yes, yeah, through the evidence that is given by the victim, for example. So that information is collected right up front. It is triaged by a court officer, a judicial officer with delegated authority, a case worker is appointed. The system for listing is expedited as well, so you are more likely to get in front of the judicial officer with the ability to make decisions, especially protective decisions, much quicker as a result of a triage system that establishes that this is one of those cases where you know the red lights sometimes flash in your mind. It’s literally a red light system. It says, Hey, this cannot wait. This cannot afford to linger in the system. We need to get a wiggle on, as they say, and get it before a judicial officer who can rigorously case manage it and start applying the resource. To it that the case actually demands.
Krista Nash 30:03
So do you do a system where you literally say, this is a level 10, this is a level one. Are there a whole bunch of different degrees of cases, or is it like this? One needs help and we’re just going to there’s two paths. Either you need help or you’re on the regular track.
Justice Altobelli 30:18
It is a little bit more sophisticated than that here, yeah, and because this is happening so far, before the people come to see me, I may not be the best person to explain the nuts and bolts of it. All I know is it’s a system that works, and in particular, it results in cases getting to me quicker where an urgent, important decision needs to be made.
Krista Nash 30:44
Then you might say, this case needs an independent children’s lawyer, or it needs one of these other resources, correct? Yes. So do you know of any other countries not to put you on the spot? But you know, why is the United States not doing this for like, I don’t speak for the United States, but I mean, really, it makes so much sense, right? These families are suffering. The children are suffering. These parents don’t know what to do. We have a very backwards system, in my view, in a lot of our states, in the United States, where we know that these people, it’s like we see that they have cancer or that they likely will have cancer, but we just let it go down this path where it’s getting worse and worse and worse, and we don’t provide these and we have a legal system with a lot of lawyers that just make it a lot worse. They’re using really toxic, heavy equipment on that family, and so we let it get really, really bad without providing those sorts of resources. You’ve been in the United States a lot with your work through ACC, do you have insight as to what the resistance is? I mean, why would we not all be trying to do it that way, the way Australia?
Justice Altobelli 31:48
Well, Krista, firstly, can I take exception? I think with the greatest of respect, you’re being very tough on your own legal system, because I know of absolutely stunning examples of child focused innovation in family law courts across your country, for example, this is just the first one that comes to mind my colleague, Judge Randall Fuller from Columbus, Ohio. I mean, he and his team are doing some fascinating, indeed inspirational work on coaching parents. Now, you know, it’s, in many ways, it’s kind of like what we do here, but it’s been labeled overtly as coaching parents. It’s the same thing. You know, it’s empowering parents to make the right decision. In Arizona, there are some just, I mean, fascinating examples of parental education and other initiatives. So it’s happening.
Krista Nash 32:53
My theory, to give Arizona credit, I did have Judge Bruce Cohen and Dr Kerry O’Hara on the show, and I agree with you that there are a lot of innovations going on in some of these places. Yeah, so that is fair, and I appreciate you saying that.
Justice Altobelli 33:06
But to circle back to your question, you say it’s a lot harder when innovation has to happen at almost the county level. It’s not even the state level. One of the peculiarities of family law, from my perspective in the United States, is that it’s not just state based. It’s then fragmented into all of these different counties who sometimes, with due respect, all due respect to my American colleagues, you seem to act independently of each other, you don’t share ideas. And then when you have this, this outbreak of enormous innovation and creativity in one county. It doesn’t necessarily spread throughout the whole court. So maybe that is the system. It’s a structural thing when we innovate in Australia, because we have the one family court across Australia, innovation tends to spread quicker. We have been generously funded by governments and governments of both persuasions. Look, we have two parties, just like in the United States, the differences between the parties are not as great, and generally family law and the family courts are well resourced. The Family Court is exceptionally well led, both in terms of the Chief Justice and in terms of the chief executive officer, who just seems to have this amazing gift of being able to get money from the government to try different things, to then prove that it works and get the funding continued. But I’ve got this hypothesis, and I share it at my peril with you and your listeners and viewers, and that is, I wonder whether in Australia, a democratic country, very much like the United States. Whether we are less concerned about individual rights than you might be, and whether So, for example, we have no hesitation about forcing people to do things that are in their best interests and in the interests of their children, whereas I detect sometimes, when talking to some of my US colleagues, that that might be perceived as an infringement into the personal rights of the people. It’s easier to make changes when we’re not so focused about our individual rights, though we rigorously are, don’t get me wrong, but it’s a matter. It’s a matter of degree. Maybe that’s an explanation. Krista, I don’t know. I don’t know.
Krista Nash 35:45
It causes me to just have so much hope, though, that this system, that so many people, you’re no different than another judge here in Colorado who was on my podcast in the very beginning. We have a couple wonderful judges on the podcast from Colorado who spoke in the same manner you do, and they speak to litigants in the same way you do. That I am not the right person to make these decisions for your children. There’s only two people in the room who know best what your children need, and that’s you, too. If you ask me to make this decision, I will, and I will use everything I can to do it, but it’s not what I want to do. It’s not what I think is best. It is a message that I think is universal. I mean, don’t you think you’re seeing that across you mentioned earlier we were prepping that the best interest of children is the same, really, largely across the world. Do you think it’s viewed the same across the world? I mean, are there, are there other countries that, and let me ask, maybe in Australia, and then maybe comment on other countries where children really just get to choose where they want to live, what they want to do.
Justice Altobelli 36:42
I think that’s part of the best interests of children in the Australian Family Law Act, and I know this is present in many, many, many family law acts across the United States and indeed Canada. It is vitally important to ascertain the views of a child and to present them before the court. Now the views are not determinative, but boy, oh boy, they’re important. Of course, we take into account the age, the maturity of the child, and of course, Krista.l We have cases where children are old enough or sufficiently articulate enough, where at the end of the day, the decision that is made about them is consistent with their views. Sometimes it’s even because of the views that they’ve expressed. But there’s nothing in our legislation that says the kids decide where they’re going to live or how much time they’re going to spend with mom or dad. Nonetheless, it’s important to hear their voice and in appropriate cases to give it substantial weight.
Krista Nash 37:47
Do you bring children into court?
Justice Altobelli 37:52
No, not because it can’t be done, but because I suspect that my judicial colleagues and I feel that we are so well resourced that we don’t need to bring a child into court. That is to say, we have an independent children’s lawyer. We have court child experts, or external experts who have met with kids, who have ascertained their views. And you know, unless there’s a really good reason why I then need to get involved. I don’t, and perhaps we’re on a journey here, Krista, about this issue. Perhaps, indeed, the time is coming when we will allow children to become much more involved in their cases. But you’ve got to be careful. I don’t think it’s across the board. I’ve got an interesting case coming up. It’s a gender dysphoria case. Do you know what I mean? Gender dysphoria, a 16 year old young person were awaiting the final bits of evidence in this case, but the independent children’s lawyer, the parents and I have already decided that whatever the decision the court makes that the child, the young person, will be present and will be able to listen to what the court says. So we’re moving along a pathway here. We’re starting to think that there are some cases where it is important to ramp up the involvement of the child, right?
Krista Nash 39:21
What can you tell me about other areas of the world in terms of just and that can be really anything that comes to mind about how they handle family law or best interests of children, just help the listeners get a sense of more globally. Since you’re I joked earlier that you’re my first international guest, which my Canadian guest will take issue with. So I guess you’re actually my second international guest, for sure, but still, I have not had anybody else on the program talking about, really, what’s happening internationally. So that’s really what I meant by saying that. What else can you shed light on about what you’re seeing or know about that might be interesting. I think at a conference I heard, for example, that in Germany. Me that there’s an interview that the judges do with children really early on.
Justice Altobelli 40:05
Yyeah, that’s right. Let me explain that through my involvement, my long involvement in the association of family consideration courts, I’ve been able to meet judges from across the world, there is a singularity, and that is that I think best interest is pretty much the same, whether it’s, you know, the civil system, the continental system, as we call, for example, the German system of family law, or our system, I think best interest is the same, how we go about doing it is different. In Germany, the judges are very hands on. It’s a very progressive system in that respect, but also they don’t have the resources that we have to get the same information using a properly trained expert. In Japan, for example, I recently spent some time with a Japanese judge here in my chambers. They’re on an interesting pathway where they’re about to embrace significant changes to their Family Law Act that include the concept of shared parenting, whereas historically, as was explained to me, the child stays with one parent and has very little to do with the Other. So they’re moving in that direction a major cultural change, not just a legal change for Japan, but for example, I know from colleagues in Italy that they have the same approach and the same problems that we have in relation to best interests of children England, Scotland and Wales, very similar to what we do in the United States and Australia, there are all sorts of pockets of innovation. But the really great thing in many respects, perhaps the curious thing about going to a conference and talking to other judges who do family law is the commonality of problems. You know, we all struggle with how to deal with family violence cases. We all struggle with cases where a child is resisting contact or refusing to have any contact with a parent and understanding what are the multiple causes of that problem and then how to deal with it. So we actually have far more in common than we have differences, at least in substantive terms.
Krista Nash 42:23
Tell me a little bit about some of your other work. I know we were talking earlier, when we were prepping, about the work you did before, about children in the crossfire of divorce, which I was particularly interested in. I think that’s clearly a commonality across the world, that relation. I mean, from the get go, we can say that relationships will fail and that children will be caught in the crossfire. But tell me more about that work you did and what your thoughts are on that.
Justice Altobelli 42:52
Yeah, yeah. I mentioned that I was a law professor for the 10 years before I became a judge at the same time as I was in practice. So I’ve always been interested in thinking about issues. I’ve always been interested in in reading, reading lots of social science research and literature because it informed my practice, and nothing changed when I went to the bench in 2006 I read social science literature for my own interest, but increasingly, social science evidence came before me and crikey, after nearly 19 years on the bench, I hope I’ve become a sophisticated consumer of social science evidence, because I’ve read so many reports, heard cross examination of so many witnesses. But listen, all of that gets you thinking in terms of how you apply that theory to practice. So, you know, how does one try to understand what conflict, the conflict that I see played out in the courtroom? How is it experienced by the children? And of course, there’s research about it, but there’s also just experience, you know, that resulted in several papers and an article about this whole concept of children getting caught in the cross fly. And I don’t remember where that came from. I probably read something like it, and I morphed it, and it inspired me. And in those high conflict cases, I’ll remind parents that what I am seeing from the bench is that each of them are in trenches and they are firing at each other. They’re throwing hand grenades at each other, and they’re not noticing that the kids are in the middle and that they’re caught in the crossfire, and that the damage that they are suffering which may not be visible, it may not be physical wounds. It’s the psychological wounds that damage may be present and continue and possibly get worse long after mum and dad have got over it, and you know, just remind them about the risks and just ask them to reorder. Orientate just to think again, to step back from the precipice. I talked to them about trajectories in children’s lives, and how even the slightest changes in how parents act after separation can change the trajectory of a child’s life, for better or for worse. Again, this is part of the parental education function that I think many of my judicial colleagues in family law feel that they have and responsibly exercise some you know, the Britain butter for me at this end, at the last stop of the Family Law litigation system is family violence, cases where there are mental health, drugs, alcohol, other addictions, cases where the issue isn’t what’s in the best interest of children, but where is the least risk for children. And then you have high-conflict. Then you have high-conflict, where you’ve got high functioning parents and they still can’t focus on what’s best for the children. The hate for each other is greater than the love for the children. Difficult cases, because often these parents are exceedingly well resourced. You know? Then cases are wonderfully prepared. They come with very, very senior counsel, and most of it is completely unnecessary. Some parents just don’t get it, and that’s a tragedy for their kids.
Krista Nash 46:34
It is, I’m going to have on the podcast. Are you familiar with the Splitt? I don’t know if you’ve ever seen that. It’s called Split. It’s a film that Ellen Bruno did, and about 10 years ago, and they just came out with Split Two, which is the same children. So she is generous, also like you, agreeing to be on the podcast. Which just makes me so happy that all these high level people who have all this interesting things to add to the voices here are willing to do this, but she does that interesting longitudinal work, and we were chatting about whether it be possible for her to do another one now with the parents, now that we’re another five years or so after that, with those same parents, of those same kids, to say, what do I wish I did differently? That’s part of why I’m doing this. I think that if people could sit back and get out of the places where their their lawyers are usually just got, oftentimes validating the stories that they’re telling them, and they can understand that the damage that what is in their hands, how important it is, the next steps they take, I think a lot of parents would do this in a more friendly way.
I can’t tell you the number of kids, as I go out and do these child interviews, say to me, you know, kids who are very sick, even, you know, I’ve got, I have two recently, a kid with with a terminal illness, and another one who had not seen her parent for years. And there’s still a narrative that she doesn’t want to, you know, there’s still a pushing that it’s not safe somehow, even though, even though it is, both of them said at the end of my interviews, I usually ask them, you know, what would you like me to tell your parents? What is your main message you want me to give them? And it’s not something about the disease or about the alleged fears, both of them said. One said, Can you get my parents to be friendlier to each other, and the other said, How can my parents be friends? Right? And I know that’s a, you know, that is more than we can ask. In some cases, they’ll say, even if they can’t be friends, can they at least not, can they at least not what they do, what they’ve been doing? So I love that you have so many resources in the Australian system, and I think we can learn a lot from that. I mean, you know, I agree with you. We’re not doing this because it’s county by county. It genuinely is, or at least state by state, but getting those triaged and then giving them the resources that they need, and then changing those evidentiary rules for those that we don’t seem to be really very key elements that could make a really big difference in and a lot of is educating. I think I came to you in part through Dr Ben Garber’s work, who’s another person on the podcast, who’s talking about, you know, if we get them the right resources, the right education, the right work in advance, you know, unfortunately, when people Google, I want to divorce. You know, what comes up. What doesn’t come up is all these resources. What comes up is, you want to win, hire me, right? You get these, get these attorney ads, and then they’re off to the races. So I’m hoping you know the people that have sat in your seat for so long, and people who have been through it themselves and have something to say about how they wish they had done it. I think those people have just so much insight to give to moms and dads who are entering this because there’s, you know, millions of people entering it every day, and if we could just change some of them to be less entrenched, you know, and more focused on how their war will affect their children. I think it would just be such a service to society, you know, which is why I think it’s interesting, too. And I do want to circle back a minute on this, because we only touched on it for a minute. You talked about how much better these new evidence rules are, because it makes things faster. I want to address the objection that some attorneys and judges have, that they think it’ll just take so much longer and be this free for all of the information, because no one will have any limits on what comes in. So let’s circle back to that for a minute, just because I think it is so very important. I mean, parents need to understand that in the United States system, unless evidence rules change in a particular jurisdiction, you cannot come into court and say what your kid thinks. No one can come into court and say what your kid thinks, other than certain exceptions that are pretty limited, even child advocates can rarely come in best interest attorneys, at least. And say unless judges, although some judges are going rogue in Colorado in particular, and just putting in their orders, I’m allowing hearsay from this person, go ahead and appeal it. Let’s see what happens. Right like, you know. So there’s people that are trying one off, but what do you think the reason is for that hesitancy from a judge, from a and not just the individual rights and the and the rules? But what do you think the fears really are about?
Justice Altobelli 51:15
I’m going to be frank, and I think this is ultimately for the benefit of my colleagues in North America. I ask you to think about whether this is part of your resistance or concern about relaxing the rules of evidence in children’s cases, in fact, about status? Are you concerned that you will be regarded as less of a judicial officer, because in some of your cases, perhaps the most important ones, though, the rules of evidence have been relaxed. Now, Krista, that’s the tough comment to make. But you know what? Sometimes tough love is needed. And I offer that comment to my judicial colleague.
Krista Nash 52:01
I think that’s very interesting, because what about the lawyers, too? Right? The lawyers have the same problem, right? Like I’m not, there’s already this feeling that it’s interesting, because when you tell, when you tell people who don’t understand law school or the status of different areas of law, and you tell them, well, family law is sort of this. You know, it’s not considered, in most cases, to be as esteemed. And you go to law school, people go back and listen to my very first podcast. I introduced myself, and I talk about how I, too got, even though I had this passion for children’s issues, that because I did well in law school, I got sucked into this. That’s not That’s not good enough for you. You need to go work for you need to be a prosecutor. You need to do criminal law. You need to work for civil litigation. You need to work in, you know, this esteemed area. I had one law professor go so far as to say, you need to understand there are two tiers of lawyers. If you can go from one to the other, but not from the other. You can’t go up. So if you go start becoming a family law attorney, the people at the US Attorney’s Office aren’t going to look at you. So make sure you make your career up here in these very important areas and not do so much about individuals. Don’t do personal injury, don’t do family law. Don’t go that way, because you’re blocking yourself in, right? So there’s this thing, then that lawyers and individuals are always surprised. But what? Why would that be? Families are so important, right? And so I think that is something that family law attorneys and judges feel second class, somehow to their peers, and changing the evidence just makes it sort of a gut punch to lawyers, right? That was that? How you see it?
Justice Altobelli 53:39
Yeah, yeah, I understand and I identify with your experience. And can I tell you it’s, it’s a story that’s been recounted to me many times, many times indeed. Why wouldn’t you work in family law? Why wouldn’t you work with kids and parents? Why wouldn’t you do something in the law where the gap between what you say and do has a positive impact on the life of the person, generally, in a child, where that gap is so small, why wouldn’t you do that? I find it hard to understand. But of course, I accept that I’m speaking as a 66 year old judge who’s been doing family law for almost all of his professional life, who has derived enormous satisfaction out of it, and now can see with the benefit of hindsight that there is such a constructive role in family law. In whatever part of the family law system or venue that you work in, there’s the ability to produce this wonderful fruit that is a positive change in the lives of kids, especially, but their mums and dads. As well. Why wouldn’t you do this? This is the best job in the world, for goodness sakes.
Krista Nash 55:05
I mean, I couldn’t agree more. And when I left my federal clerkship, I had enormous pressure. I mean, the judge denies it now, but it was my absolute experience that I got fought every step of the way, because it was like you have to go into civil litigation, you have to go work at the US Attorney’s Office. You’re that good. Go do that. And I was off running around interviewing at all these big firms, you know, trying to fight myself about this propensity to want to do what this work in children. And I think it’s really sad, because it is such a wonderful area in which to practice. I mean, I wouldn’t want to be practicing in any other place, truly.
Justice Altobelli 55:45
Well, I’m glad you have stuck around, Krista. Keep up the great work. Okay, keep up the great work.
Krista Nash 55:52
Well, thank you so much for spending your time with me today. I’m so grateful, and I hope I get to see you at a conference. I might pull you into Colorado to help us advise on how to change our system around to triage and meet children’s needs more.
Justice Altobelli 56:05
I will come to Colorado at any time at your invitation. I love your state. It is one of the most beautiful places in the world.
Krista Nash 56:12
Well, meanwhile, you need to invite me on a field trip to Australia. That would be lovely. So thank you for your time today. Your honor. I’m so grateful!
Justice Altobelli 56:22
My pleasure. Thank you. Krista, good luck.
Krista Nash 56:24
Thank you so much. You too. Bye, bye.
Intro/Outro 56:26
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