1934-2016

In 1975, the Whitlam government introduced no-fault divorce, consigning to history the practice of camera-wielding private detectives snooping about windows late at night to capture evidence of infidelity. Gone were the days when a party had to provide legal grounds for divorce, often salacious evidence of adultery produced from a manila folder for the benefit of a jury.

Under the reforms, divorce was granted without question after a 12-month separation, the interests of the child were made paramount in custody disputes, and property was divided on the basis of equity – all regardless of "blame" for the marriage breakdown.

One of the pioneers given the task of developing this controversial area of the law was Adrian Smithers, a judge of the newly constituted Family Court of Australia for 26 years, from 1977 to 2003.

Putting the new principles into practice proved complex in such an emotionally charged jurisdiction. Even today, many litigants feel aggrieved at the Court's reluctance to attribute blame to the other party following marital breakdown.

This tension was exacerbated in the early days by the fact that proceedings were conducted behind closed doors, leading to wild rumours about what was taking place inside.

The most extreme manifestation of the turmoil surrounding the new Court was a series of bombings and shootings in Sydney in the 1980s, resulting in the deaths of one judge and the wife of another.

To this often stressful environment, Adrian brought a measured approach, great industry, a deep knowledge of the law, an innate sense of fairness and a meticulous approach to fact finding.  "The truth," he said, "has to be fished for."

His rulings helped establish case law in areas including DNA testing, the rights of lesbian mothers, maintenance payments in relation to adult children, and – perhaps most significantly – the duty of parties to make full and frank disclosure about their financial affairs.

Adrian believed that the best way for the Family Court to develop was to build upon established legal traditions. Advocates who mistook the comparatively informal atmosphere envisaged for the Court, in which wigs and gowns were not worn, as excusing lower professional standards were quickly disabused of that notion.

This extended to matters of dress. The only public controversy of Adrian's judicial career was when he upbraided a female lawyer for dressing in a manner that he regarded as not showing sufficient respect for the Court.

Consistent with this, when debate arose about the introduction of wigs and gowns for Family Court judges and advocates, he was firmly in favour.

He believed formal garb was an indication that legal proceedings represented something solemn, beyond the mere prosaic. A judge should somehow be separated from the bloke you saw that morning at the supermarket.

As it happened, the traditionalists won the day and in the 1980s wigs and gowns were introduced to the Family Court. Court proceedings were also opened up to the public and, with restrictions, the media, which Adrian supported.

These were no small matters. To Adrian's mind, they strengthened the Court, which in turn strengthened society. He was a great defender of the independence of the judiciary as a bulwark against the threat to citizens' rights posed by the abuse of power by government and the bureaucracy. In turn, he eschewed a tendency towards political activism among judicial officers.

Probity was a byword of his judicial career. Adrian rather quaintly avoided public bars – preferring the "Ladies Lounge" – and was aghast that some judicial figures fraternised with "colourful racing identities" and the like. He put it down to a Sydney thing.

He declined to hear cases involving the firm for which his wife Jennifer worked as a solicitor, a practice he continued long after she left the firm.

Adrian Allfree Smithers was born on April 14, 1934 to Reginald and Dorothy Smithers and raised in Camberwell. He followed in the footsteps of his greatly admired father Reginald Allfree Smithers (later Sir Reginald): schooled at Melbourne Grammar; law at the University of Melbourne; admission to the Victorian Bar; and, finally, promotion to the bench.

In 16 years at the Bar, he developed an extensive Supreme and County Court practice, and was a formidable jury advocate, particularly in cases involving personal injury. At the time he was appointed to the bench, he was counsel assisting the Board of Inquiry constituted by Justice Minogue into third party insurance premiums in Victoria.

As a resident at Trinity College, Adrian pursued the great love of his life: Jennifer Muntz, a sporty and no-nonsense law student from Dimboola with a powerful spirit of adventure. They married in 1958, left immediately for England and returned in a Ford Prefect, driving overland from London to Colombo, via Iran and Afghanistan, a trip that would be somewhat improbable today.

Adrian and Jennifer had five children during the 1960s and were married for 56 years.

Adrian was a passionate sportsman and sports fan. He was an outstanding wingman for University Blues in the A-Grade amateurs and enjoyed watching Melbourne win a succession of VFL premierships during their grand era. He could describe in vivid detail the clash between the Demons' Frank 'Bluey' Adams and Magpie Des Healey in the 1955 grand final.

He also played cricket, squash, tennis and golf, the latter regularly until he was stricken by Parkinson's Disease in his final years.

Jennifer became full-time carer for Adrian until her sudden death in 2015, whereupon Adrian moved into the caring environment of Mary MacKillop Aged Care in Hawthorn. He retained his essential decency, good humour and kindness to the end.

Adrian is survived by his sister Robin, brother Julian, children Jonathan, Richard, Patrick, Penny and Edward and 16 grandchildren.

This obituary was written by Adrian's children.