![handle is hein.journals/anzjc4 and id is 1 raw text is:
AUST. & N.Z. JOURNAL OF CRIMINOLOGY (March, 1971): 4, 1
EDITORIAL
Family Courts
TODAY the proper function of the court is being questioned on more than
one ground. For many years now the Children's or Juvenile Court has adopt-
ed a rather different procedure from that of the adult court; the procedure
being less legalistic and rather more concerned with the ultimate re-
habilitation of the delinquent. It has been suggested that Juvenile Courts
should cease to be essentially a court, but rather a family council or
family tribunal' Again, in the adult jurisdiction it has been proposed
that divorce should be taken away from the rigid adversary system practised
in our present courts. Recently a Senior Lecturer in Law at Monash
University (Mr. H. A. Finlay) has been reported as saying2, Family courts
would speed divorce where it was inevitable and help stop it where the
marriage was repairable. Also, Medical and social workers would help
see that children were looked after. Accountants would help in property
adjustments. Marriage counsellors and psychologists would concentrate on
saving marriages that could be repaired. In the same article a criminologist
(Mr. D. Biles) was reported as saying that family courts should also deal
with juvenile delinquency. As a large number of delinquent problems have
their basis in the home it would seem logical for one court to handle all
those problems. Such a thesis has much to commend it, but might the
matter be taken further?
For rather different reasons, concerned with the overloading of the
United States Supreme Court by appellants, the Chief Justice, Justice
Berger, is reported as saying3 that he proposed
That State and Federal courts be relieved of a great many matters
traditionally handled by them ... There is a broad and serious social
question . . . whether such things as divorce, child custody,
adoptions, receiverships, various other matters of that kind belong
in the courts at all.
He questioned also whether courts should be the instruments for dealing
with the chronic alcoholic, the narcotic addict and the serious mental
patient.
There would appear, at first sight, to be much to be said for such a
point of view. Clearly any quasi-judicial tribunal dealing with family matters
and such questions as mental illness would be subject to appeal to the tradi-
tional courts. However, one problem that must occur to all workers in the
field is where one draws the line, or whether any line should be drawn.
Where and at what stage does delinquency end and criminality begin, and
how ill is a serious mental patient? In other words, is there not a case
1. See The Child, the Family and the Young Offender, (1965) Cmnd. 2742 H.M.S.O. London.
The recommendations then made were criticised and a later White Paper, Children in
Trouble (1968) Cmnd. 3601 H.M.S.O. London, made less radical recommendations and these
were later essentially enacted as the Children and Young Persons Act, 1969. See Children,
Young Persons and the Courts - A Survey of the New Law [1970] Crim. L.R. 368.
2. The Age (Melbourne) 28th December 1970.
3. International Herald Tribune 8th December 1970.
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