An interview with the late Hon Stephen Thackray - Wolters Kluwer CCH
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Family Law

An interview with the late Hon Stephen Thackray

By Zoe Durand

Principal and Founder of Mediation Answers and Author of Inside Family Law

I had the privilege of interviewing the late Hon Stephen Thackray, former Chief Judge of the Family Court of Western Australia, at the 6th Australian Association of Family and Conciliation Courts Conference (AFCC).

The interview explored Mr Thackray’s background and his future in mediation and working with Aboriginal Australians to make family law more accessible.

I have included the transcript to the interview in full. It is unedited and exemplifies the type of person Mr Thackray was. Mr Thackray was a boy from country Western Australia who ended up as the Chief Judge of the Family Court of Australia. Mr Thackray then moved on to working with families around Australia to help resolve their issues through mediation. As you will learn, he was also passionate about helping Aboriginal Australian’s navigate the family law system. Mr Thackray was a wonderful man who was taken too soon.

Ms Durand – Hi, you are listening to the Inside Family Law podcast. I am the roving, or the “raving”, reporter here at the AFCC conference in Sydney, the 6th conference. It’s the last day here, and I am very lucky to be speaking with Stephen Thackray. Thank you very much for taking the time out, Stephen.

Mr Thackray- It’s a pleasure Zoe.

Ms Durand – You weren’t here yesterday, but you are here today and you were speaking about something … before we go into that, sorry, a bit of background for our listeners: who are you and what’s your role in the family law process?

Mr Thackray – Well, at the moment, I am a family law mediator. I travel around Australia helping people resolve their problems by mediation, but until January this year I was a judge. I was the Chief Judge in the Family Court of Western Australia. When I retired, I was the Senior Judge of the Appeal Division of the Family Court of Australia. So, a judge for 20 odd years and before that I was a lawyer for 20 odd years, and before that I was a boy from country WA.

Ms Durand – One question just popped into my head. Sorry I know it’s a bit off script, but I always find this interesting you know with the judges when they retire … they often do go into the mediation path. How is that? Is that a big shift for you to go from that, you know, decision-making … did you shift into the mediation or not so much, or how do you find that?

Mr Thackray – Oh! It’s a massive change, it’s a great change because up until January, I was essentially having to tell people what to do with their lives and making decisions for them, but as a mediator all you are doing is helping people make decisions for themselves, so it’s a very big shift.

Ms Durand – Do you enjoy it?

Mr Thackray – I love it!

Ms Durand – That’s fantastic!

Mr Thackray – It’s great!

Ms Durand – You never retire, you judges’, it’s the other thing I have noticed about you. I have known a few who say they are going to retire, but then sure enough within a few months they are doing conferences, and papers, and mediating, and arbitrating, and doing all kinds of things.

Mr Thackray – Well, as you can see Zoe, I’m a very young man.

Ms Durand – This is true.

Mr Thackray – I retired years earlier than I had to, so … I felt that I still had something to contribute and so I thought it would be a fairly part-time exercise being a mediator, but it has turned out to be a full-time exercise and I am enjoying it immensely. My wife is not enjoying it quite so much, because I promised her a quiet retirement, but we are having fun, so that’s the most important thing in any job you do. You’ve got to have fun.

Ms Durand – And you can take her on your travel sometimes, I’m sure around Australia.

Mr Thackray – Correct!  She is here with me in Sydney this week. I’ve been mediating in Sydney this week during the conference, which is why I missed yesterday. And I have another mediation on Monday, and I am getting to meet up with my old friends and making new ones.

Ms Durand – Fantastic. So look, tell me about why is that you are out here for AFCC, what is that draws you to the AFCC? What’s good about it for you?

Mr Thackray – Well …What draws me to AFCC?  I was lucky enough some years ago to speak at their conference in Canada and I could see there firsthand how AFCC provides an opportunity for lawyers and social scientists to get together and to learn together, and it’s a very important thing I think in the family law system. Lawyers used to hold their own conferences, social scientists their own conferences, but when we get together and we mix and we share our wisdom or our experience or our ideas, together, I think, we do better work and that’s what AFCC is all about.

Ms Durand – So look what were you here speaking about this morning?

Mr Thackray – Today I was taking about something very dear to my heart. It involves a program that the Family Court of Western Australia had in Newman, which is in the Pilbara region of Western Australia where we were working with the Aboriginal people up there to try to bring family law justice to Aboriginal people.

Ms Durand – Okay, so do you want to tell me more about what were these exactly … how the nuts and bolts of how this works?

Mr Thackray – Okay, the nuts and bolts of it comes from the knowledge that the current family law system is not attractive to Aboriginal people. It’s quite a scary system. It’s scary for everyone, particularly scary for Aboriginal people, who know that often when they come to court, they or their relatives are being sent to jail or their children are being sent away from them and what they would like is access to the family law system. So we talk with them about how we could try to make the family law system easier for them to navigate and so this work that we were doing in the Pilbara region was trying to make it easier for them to come to family court and get a family court order if they wanted one.

Ms Durand – So what exactly, how do you make it easier when you say make it easy? What does that mean?

Mr Thackray – Well okay!  We do two very important things:

1. We get rid of all the paper work so they are no forms for them to fill in.

2. We don’t have an appointment system, so people can come and see us when they like. If they need to go to court, we work very quickly, within hours or days to set up a court hearing.  Often in the family law system, there are dozens of documents or many documents to fill in, there are timelines to meet, there are deadlines, and if you are not there, you are lost, and so we recognize that for Aboriginal people in remote locations, they could be coming in. One lady came, she had to come over a thousand kilometers to come and see us. So, we didn’t expect her to be on time. And we know that cultural stuff comes up, that means that people have to go and do other business. We accept that’s the case so we wait until they are ready for us. So those are the two main differences, but we also made sure everyone had a lawyer and we also made sure that everyone had an interpreter, because, Zoëe in that part of the world a lot of people don’t speak English.

Ms Durand – Sure!

Mr Thackray – Or if they do, it’s their second language. And they prefer to speak through an interpreter. So everyone had a lawyer and everyone had an interpreter.

Ms Durand – And where were the lawyers sourced from?

Mr Thackray – Okay, we had four sets of legal organizations who worked with us. We had Legal Aid WA, we had Aboriginal Legal Service in Perth, but also a separate organization called Aboriginal Family Law Services and, most importantly, we had the local community legal centre, the Pilbara Community Legal Centre, who are on the ground up there. So between that we had all bases covered. We were never a conflict situation. We always had one lawyer who was able to represent each party to the dispute.

Ms Durand – So, when did this start, when did you roll out this …?

Mr Thackray – Good question. It was a couple of years ago we started doing it.

Ms Durand – Okay.

Mr Thackray – And the most recent visit that we had to Newman was after I retired, and they went up there in July this year – that was the most recent visit.

Ms Durand – Okay, and how was it? Is there any feedback at all or maybe a formal feedback, or just an anecdotal feedback?

Mr Thackray –Alright! Well today, with the AFCC audience I was able to share some feedback that we had from some of our clients. We felt it was extremely important to hear what they thought, so every time we dealt, well not every time, but most times that we dealt with the family we would ask their permission to sit down with them afterwards to talk to them about their experience of dealing with us and … we wrote some of that up and, in some instances, we had clients who were sending us text messages and whatever after the hearing. So, by a combination of those means, we did get some feedback. I would love to get something a bit more formal and I have recently become involved with a couple of universities in Western Australia and I am going to be talking with them about the possibility of some proper formal research into the experience of the clients of our system.

Ms Durand – And to see how it is yeah.

Mr Thackray – To see how it panned out for them.  Because we, everyone that runs a program, thinks it’s great and you can run around and say we were terrific and we try hard, but the only thing that matters is what the clients think.

Ms Durand – Absolutely!  That’s why I was curious about that, yeah. Hmmm, any, any other projects that you are working on at all … you know in that sort of area or in that space?

Mr Thackray – Well since I have retired, the only thing that I am doing in that area, because I am no longer entitled to be involved …

Ms Durand – Yeah sure.

Mr Thackray – … is that I am being the mentor for the lawyers at the Aboriginal Family Law Service in Perth. They asked me after this project if I could come and mentor them, so I met up with them. They are spread all over Western Australia, which as you know is a very large place so we have this enormous telephone or video hookup, where we sit around a table and they can ask me questions or I talk to them about issues that might be relevant to their practice. So that’s one thing I am doing. I’m having a very minor association with an Aboriginal mediation service that’s being reinvigorated in Perth at the moment. So I am very keen to continue to help out in that area in any way that I can.

Ms Durand – And have you always been passionate about this or is this more in your later years or ….

Mr Thackray – Well that’s a good question. Yeah I am passionate about it but it comes from something in my childhood. I was, as I said, brought up in country WA and unlike most Australians I went to a school with a majority of children who were Aboriginal, and so I lived, well, I didn’t live side-by-side, but I went to school side-by-side with Aboriginal people. What I didn’t know at the time, Zoe, was that the children I was going to school with were part of the “Stolen Generation”.

Ms Durand – Sure.

Mr Thackray – They all lived on a mission and we were told that they were all orphans and that they were being looked after by white people and it was only later that I learned that they were not orphans. And so I learned about the “Stolen Generation” and I’ve thought very deeply about the disposition of our Aboriginal people in Australia and I feel that we have an obligation to do a lot more than we have done in the past and what we need to do particularly now is not to tell Aboriginal people what is good for them but to ask Aboriginal people what will work for them and then to do what they want.

Ms Durand – Work with and not …

Mr Thackray – Work with.

Ms Durand – Not top down.

Mr Thackray – Correct.

Ms Durand – … Because that didn’t really work out so well in the past.

Mr Thackray – It hasn’t worked, what we, we have, out of fairness to many people, a lot of effort and a lot of money has been spent in this area but perhaps what we may be slowly getting better at doing is understanding that we don’t have the answers for other people. They are much more likely to come up with the answers for themselves and those of us who have got the privilege of having university degrees or jobs as judges need to listen to Aboriginal people to make sure that the services we are delivering are suitable for them and that was really what this program was all about. Other people in Australia have been doing the same thing. Judge Robyn Sexton, who introduced this program this morning, she has been running what they call an “Indigenous List” in Sydney, and the idea about that is exactly the same, and that is to try to do things differently, because people are different. We all come from different backgrounds, we all have our own culture, and we need to respect other people’s culture, so we don’t need to proceed on the basis that everyone is white, everyone is rich, or everyone is educated, or everyone speaks English. We need to accept the differences that exist in our community and then we need to learn how to work with them.

Ms Durand – Fantastic message, and I like what you said about you know that, you know, people who have those privileges and there is that sort of “we are all a part of society, we do have obligations to give back, you know, as well, rather than just take-take-take, you know”.

Mr Thackray – And we’ve all got something to contribute …

Ms Durand – And we all have something to contribute, I love that.

Mr Thackray – Everybody has got something to contribute. And we just have to find out what that is, so in our program in Newman, we had lawyers, we had a family consultant, we had a homelessness consultant, we had an interpreter, and we just had local people who knew what the rules were for local people … you know, what are the rules in Newman for an Aboriginal person … it is not acceptable to say that any Aboriginal child can go and be placed with any other Aboriginal family and that we have somehow or the other ticked the box of what our legislation says. We need to know that in Aboriginal society people are different, there are different groups, there are rules about who you can even speak to. This was one of the very interesting things in Newman. In Mardu culture, there are what are called “avoidance relationships” and you can’t be in the same room as, or look at, or talk to, another person who white Australians would think, well, they are all the same. Well they are not all the same and you need to understand that and to work with that.

Ms Durand – Fantastic! Thank you so much for talking about that and it sounds like, you know, at least as, you know, you said the real feedback is from the clients, but at least it’s trying to think about different things rather than just keep doing the same old thing that’s been done in the past.

Mr Thackray – Yeah but… and family law has been, to give it credit, been very successful, with this over the last 40 years. There’s a lot of criticism of the family law system, people running around saying it’s in chaos and so on. They fail to step back and have a look at some of the really good things that have been happening and are happening in the family law system, and family lawyers and social scientists working in this space are always looking out for new ways to do things. And so it’s a moving feast. And I’ve just heard a presentation by Catherine Boland and, interestingly, her mum, Judge Jennifer Boland, and the thesis of that presentation was “everyone’s saying everything is terrible, let’s just get a reality grip. Sit back and acknowledge the fact that Australia has actually got one of the best family law systems in the world.” Although we cry out for extra resources, we are quite well resourced, and so we should celebrate the fact that we have got a very, very sophisticated family law system. But it’s full of people who properly are always looking for it to be made better and so, why it’s so great coming to AFCC is to hear about what other people are doing. We’ve heard about what’s happening in New Zealand this morning, for example, with the Maori people in New Zealand. So the opportunity to get together with people around the world and around Australia to hear what’s happening just provides us with knowledge and it also provides us with enthusiasm about making things better for our clients, because essentially that’s what it’s all about.

Ms Durand – Absolutely. Do you have any ideas about … well, first of all what do you think is … I asked Diana Bryant this earlier and she had some good answers to it.  …  what do you think is working well or has worked well? Like what are the positives we want to keep in this new system we have got, going forward?

Mr Thackray – I think in terms of … if we talk about the system, if we talk about courts, I think it’s important to make sure that judges who are appointed to the court have not only an understanding of family law, but they have some sympathy for it, some feel for it, and that they are also well educated. We must expect this of family court judges. They are well educated in matters of family violence, matters in relation to child development, matters in relation to brain development in children. There are all sorts of things that we need to make sure that those who we have appointed to judge already know about. We need to make sure that there are enough of those judges to not be pressured into making quick decisions and getting grumpy because they have got too much work. We need to make sure they are well supported by social scientists providing up-to-date evidence, making sure the decisions are right, and we also need to make sure that the system is designed in a way that gives people opportunities to resolve their problem outside the court system wherever practicable and so that we look at the court as a place of last resort. Some cases do actually need to go to court.

Ms Durand – I agree with that.

Mr Thackray – You cannot expect everyone to come to an agreement …

Ms Durand – Hmmm

Mr Thackray – Some people, if you have to come to an agreement, it wouldn’t be safe, it wouldn’t be fair. So we have got to have a good, well-resourced court system with judges who have a feel for the area and have knowledge in the area and we need to have a really good set of supports around that system, so that people caught up in the system get referred out for support when they need it. If the real problem in the case is drugs, if it’s gambling, if it’s alcohol, if it’s violence, we need to have all the support so that we can refer people out to get support to resolve the real issue, rather than just trying to impose.

Ms Durand – Cross-referrals and …

Mr Thackray – Correct! Yeah …

Ms Durand – Because it’s not always just a legal issue.

Mr Thackray – It’s not!

Ms Durand – That might be where they’re coming, they are entering through is into the legal system, but then we need to, there are other referrals that may help them even more than the legal process.

Mr Thackray – I couldn’t agree more. We are just a small part of the separating community. There’s … most people don’t actually come anywhere near the Family Court. Lot of people don’t go near …  anywhere near a lawyer, but we tend to focus on the very small number of cases that actually go to court … for a sensible family law system, we need to step back and look. There are all sorts of pathways, all sorts of problems, and we need to make sure there is an array of services that helps each individual family with their each individual problem.

Ms Durand – Well, look, thank you so much, it’s been an absolute pleasure and a privilege, to be speaking with you. And where could people get in touch with you, if they do want to mediate with you and …  

Mr Thackray – Oh! I don’t want to turn this into an advertisement.

Ms Durand – I know, I know, and it’s me bringing this up, this is not you. But I just thought after listening to you that’s when people might get … it’s like if they get a feel for it. They go: oh, he was nice. I’d like to get in touch with you about whatever work you’re doing.

Mr Thackray – What I’d like to say is that there are a very large number of mediators in Australia, and many of them are members of professional organizations, like the Resolution Institute, the Australian Institute of Family Law Arbitrators and Mediators, and they have websites. Just as I said the system needs to be designed for each family, people need to choose the mediator that is suitable for them, and so, there, I repeat myself, but there’s a lot of mediators out there, and I would probably suggest you go and find one of them.

Ms Durand – Very humble.

Mr Thackray – But if not, well, then, I’d be very happy to have a chat with you.

Ms Durand – Alright! Thank you so much, really appreciate it. Thank you for your honesty and candor.

Mr Thackray – Thank you Zoe, thank you very much!