Issues Please indicate which issues from the committee's Terms of Reference are relevant to your submission a. ongoing issues and further improvements relating to the interaction and information sharing between the family law system and state and territory child protection systems, and family and domestic violence jurisdictions, including: ☐ Yes i. the process, and evidential and legal standards and onuses of proof, in relation to the ☐ No granting of domestic violence orders and apprehended violence orders, and ii. the visibility of, and consideration given to, domestic violence orders and apprehended violence orders in family law proceedings; b. the appropriateness of family court powers to ensure parties in family law proceedings provide ☐ Yes truthful and complete evidence, and the ability of the court to make orders for non-compliance ☐ No and the efficacy of the enforcement of such orders; c. beyond the proposed merger of the Family Court and the Federal Circuit Court any other reform ☒ Yes that may be needed to the family law and the current structure of the Family Court and the Federal ☐ No Circuit Court; d. the financial costs to families of family law proceedings, and options to reduce the financial impact, ☒ Yes with particular focus on those instances where legal fees incurred by parties are disproportionate ☐ No to the total property pool in dispute or are disproportionate to the objective level of complexity of parenting issues, and with consideration being given amongst other things to banning ‘disappointment fees’, and: i. capping total fees by reference to the total pool of assets in dispute, or any other regulatory option to prevent disproportionate legal fees being charged in family law matters, and ii. any mechanisms to improve the timely, efficient and effective resolution of property disputes in family law proceedings; e. the effectiveness of the delivery of family law support services and family dispute resolution ☐ Yes processes; ☐ No
f. the impacts of family law proceedings on the health, safety and wellbeing of children and families ☐ Yes involved in those proceedings; ☐ No
☐ Yes g. any issues arising for grandparent carers in family law matters and family law court proceedings; ☐ No
h. any further avenues to improve the performance and monitoring of professionals involved in ☒ Yes family law proceedings and the resolution of disputes, including agencies, family law practitioners, ☐ No family law experts and report writers, the staff and judicial officers of the courts, and family dispute resolution practitioners; ☐ Yes i. any improvements to the interaction between the family law system and the child support system; ☐ No
j. the potential usage of pre-nuptial agreements and their enforceability to minimise future property ☐ Yes disputes; and ☐ No
☒ Yes k. any related matters ☐ No
Your submission Please provide a brief summary of your experience and any relevant issues. Your submission should respond to one or more of the committee's Terms of Reference. Please Note that this Submission will be sent electronically as well as in paper form.
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MURPHY’S SECTION 121 OF THE FAMILY COURT. Murphy’s design of the secrecy provisions for the family court overstep reasonable concepts of confidentiality and are inherently Stalinist and overly controlling in nature. The mythology that Section 121 is to “protect parties to the court” is an insult to the intelligence of Australians. The family court has no interest in protecting parties who have the misfortune to appear before it. Decades of suicides and murder/suicides and the cover up and denial of them are the real test of this invidious institution’s “concern”. Section 121 has but one function, to prohibit criticism of the court and to protect its operations, to assist its resistance to reform and to ensure that those who oppose it have no voice and are subject to harsh penalties including incarceration for daring to speak out. The family court refuses to acknowledge its vicarious role in these events, it refuses to hear criticism and it refuses to amend it ways. It proceeds unchecked. Indeed, numerous inquiries had omitted the suicide of men and fathers as a term of reference for inquiry, this current JSC Inquiry is no exception. Below is the detail of Section 121 in all its Rotten Glory. This is an affront to anyone with a sense of personal freedom, free speech and concerns regarding State power over the Citizens. Murphy was no freedom fighter, he was a tyrant.
Family Law Act 1975. Part XV Miscellaneous Section 121 121 Restriction on publication of court proceedings (1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies: (a) a party to the proceedings; (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or (c) a witness in the proceedings; is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year. (2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any
10 means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year. (3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if: ( NOTE ESPECIALLY THE FOLLOWING PASSAGE ) (a) it contains any particulars of: (i) the name, title, pseudonym or alias of the person; (ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated; (iii) the physical description or the style of dress of the person; (iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; (v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; (vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or (vii) any real or personal property in which the person has an interest or with which the person is otherwise associated; being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires; (b) in the case of a written or televised account or an account by other electronic means—it is accompanied by a picture of the person; or (c) in the case of a broadcast or televised account or an account by other electronic means—it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires. (4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983.
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(5) An offence against this section is an indictable offence. (8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions. (9) The preceding provisions of this section do not apply to or in relation to: (a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or (b) the communication of any pleading, transcript of evidence or other document to: (i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or (ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or (c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or (d) the publishing of a notice or report in pursuance of the direction of a court; or (da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or (e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being: (i) a separate volume or part of a series of law reports; or (ii) any other publication of a technical character; or (f) the publication or other dissemination of an account of proceedings or of any part of proceedings: (i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or (ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or (ii) to a person who is a student, in connection with the studies of that person; or (g) publication of accounts of proceedings, where those accounts have been approved by the court.
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(10) Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance. Note: Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123. (11) In this section: court includes: (a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and (b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory. electronic means includes: (a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or (b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
Decades of Parliaments of all political persuasions have left this section unchecked. It needs to be abolished. No question.
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THE VILLIFICATION OF MEN. The family court was politicised from in its very conception by Murphy’s legislation and thereafter by the appointees to the top position of chief justice. From the very outset the first chief judge Elizabeth Evatt , product of the labor Evatt family and an ardent feminist oversaw the Marxist legislation. Thereafter Alastair Nicholson took over the reins. His inability to accept even the most reasonable measures of criticism and his vilification of Fathers is a matter of public record. “The most vitriolic critics of the Family Court were sinister men who wanted to change the law to disadvantage women, the court's Chief Justice said last night” (The Age. Melbourne Wed 21 October 1998, p2) . Nicholson further : “As I said at the 1995 conference, there is a more sinister element at work. I have absolutely no doubt that there are many persons associated with men's groups in particular who have an agenda to change the law to the disadvantage of women. To many of these people, women's emancipation has either not occurred or should not have done so. A feature of their rhetoric is a complete absence of concern for children other than as objects of their rights and entitlements. They frequently engage in the grossest form of harassment of their former partners and their children. Many demonstrate in strident terms outside the court. Some even stand for Parliament, with a signal lack of success ( like he did for the ALP 1972,1974..still failed personally when his labor comrades were swept to power in 1972…It wasn’t “Time” for Alastair ). These people undoubtedly do themselves and their children a great disservice. There are issues relating to men and families that deserve to be aired. There are people who could receive better and more caring results from the system. More could no doubt be done but these people actually stand as an obstruction to change ( How???? ). Their own bitterness and their inability to look beyond their own cases ( perhaps men as an entity don’t get the specific support and funding equal to women’s and feminist groups to allow them to mount a consolidated political and social argument against Nicholson’s court: unlike the women and feminist lobby, the personal is all they have ) and the supposed injustices that they have suffered, stand in the way of any sensible dialogue” ( Sydney Morning Herald Wednesday 21 October 1998 ). Such then is the position of the “unbiased” former chief justice. Dealing with Men damaged by the “mistake” court is seemingly not as pleasant or appealing as chaperoning an attractive Malaysian Princess perhaps.
THE COURTS AND THE ADVERSARIAL SYSTEM. "Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."-- C.S. Lewis
Like most Australian Courts the Family Court is hamstrung by its now ancient heritage values and practices, that is the adversarial system. Compounding the adversarial system and the profit incentive monopoly of the learned friends for hire. Criticism of the courts is not a recent manifestation. As far back as the 16th Century Jonathan Swift was making criticisms of courts, lawyers and the judiciary, albeit in terms of Political Satire as well as a Nom De Plume and perhaps as a required safety measure against strong and often deadly reprisal by powerful governing bodies in that age. Swifts observations are telling and relevant criticism of our courts of law even today.
Swift wrote in 1726 ( Gulliver’s Travels ), “there was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves. For example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from
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me. I must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself. Now, in this case, I, who am the right owner, lie under two great disadvantages: first, my lawyer, being practised almost from his cradle in defending falsehood, is quite out of his element when he would be an advocate for justice, which is an unnatural office he always attempts with great awkwardness, if not with ill-will. The second disadvantage is, that my lawyer must proceed with great caution, or else he will be reprimanded by the judges, and abhorred by his brethren, as one that would lessen the practice of the law. And therefore, I have but two methods to preserve my cow. The first is, to gain over my adversary’s lawyer with a double fee, who will then betray his client by insinuating that he hath justice on his side. The second way is for my lawyer to make my cause appear as unjust as he can, by allowing the cow to belong to my adversary: and this, if it be skilfully done, will certainly bespeak the favour of the bench. Now your honour is to know, that these judges are persons appointed to decide all controversies of property, as well as for the trial of criminals, and picked out from the most dexterous lawyers, who are grown old or lazy; and having been biased all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that I have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing anything unbecoming their nature or their office. “It is a maxim among these lawyers that whatever has been done before, may legally be done again: and therefore, they take special care to record all the decisions formerly made against common justice, and the general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions; and the judges never fail of directing accordingly. “In pleading, they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious, in dwelling upon all circumstances which are not to the purpose. For instance, in the case already mentioned; they never desire to know what claim or title my adversary has to my cow; but whether the said cow were red or black; her horns long or short; whether the field I graze her in be round or square; whether she was milked at home or abroad; what diseases she is subject to, and the like; after which they consult precedents, adjourn the cause from time to time, and in ten, twenty, or thirty years, come to an issue. “It is likewise to be observed, that this society has a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong; so that it will take thirty years to decide, whether the field left me by my ancestors for six generations belongs to me, or to a stranger three hundred miles off. “In the trial of persons accused for crimes against the state, the method is much more short and commendable: the judge first sends to sound the disposition of those in power, after which he can easily hang or save a criminal, strictly preserving all due forms of law.” Here my master interposing, said, “it was a pity, that creatures endowed with such prodigious abilities of mind, as these lawyers, by the description I gave of them, must certainly be, were not rather encouraged to be instructors of others in wisdom and knowledge.” In answer to which I assured his honour, “that in all points out of their own trade, they were usually the most ignorant and stupid generation among us, the most despicable in common conversation, avowed enemies to all knowledge and learning, and equally disposed to pervert the general reason of mankind in every other subject of discourse as in that of their own profession.” Swift’s appreciation of the workings of courts is very sharp. He has been superseded in modern times.
Dr Carol O’Donnell, Sydney Academic in her submission to the Committee for Legal and Constitutional Affairs, 20 April 2003, regarding the Australian Human Rights Bill 2003, made some substantial and very creditable observations regarding the Australian judiciary. She put forward the argument that : Australian courts operate upon an authoritarian, pre-scientific, adversarial, confused, wilfully ignorant, uncaring, expensive and therefore socially dysfunctional paradigm. They represent a
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collegiate monopoly culture which has used its power to enrich itself at the expense of the society, primarily by denying information and their accountability to anybody but each other. Over the centuries the courts have entrenched their powers, but the time for all Australians to use alternative methods of decision making is long overdue. Courts operate according to an authoritarian and prescientific mode of discourse. For example, as I understand it, a high level court decision about a particular situation is commonly used as a precedent to determine judgement in future cases and thereby to change the law, which is also supposedly the general standard. This argues from the particular to the general, on the basis of the Godlike authority of the decision maker, rather than on the basis of a broadly informed evaluation of application of an expected standard. The latter paradigm is scientific, the former is authoritarian.…..Evaluation of practice outcomes is then required. Existing codes of practice should be changed when it can be clearly demonstrated that there is generally a safer way of doing things. In contrast, those who traditionally practice law show no interest in evaluating the physical or social outcomes of their judgements, either on an individual or aggregated basis. Although decisions may be changed in higher courts, this process involves a comparatively uninformed repetition of the process of judgement, carried out in another arena by men ( and women? ) with more money and power.
She made further sensible observations regarding the so called “Rule of Law “, in her Response to the Treasury Paper Entitled “An Australian Consumer Law : Fair Markets –Confident Consumers 2009”, when she noted that, The feudal practice of law is instead based on ancient, adversarial assumptions, which treat the secretive gathering of evidence as if it is primarily related to the conduct of a fair fight, rather than the search for truth about a matter, according to broadly scientific principles. She went on to say : The legal process is crazy from the perspective of the public interest for many reasons, including, because the legal occupational monopoly usually refuses to conceptualise itself as a service, like provision of health care or education. Its adversarial practice is opaque and unaccountable, which is unsurprising in a feudal institution.
The family court is unique in its operation. There is no scope whatsoever for a jury ( despite Murphy’s stated admiration for juries in his own circumstances ) and the court operates for the most under a code of secrecy. Section 121 keeps the court protected and acts as a barrier to specific or even general criticism and therefor impervious to serious public outcry and ultimate reform. Family court, despite its extensive and unacceptable delays is a part of Crisis Intervention. Men and Women who approach it a usually in a state of crisis. The family court however seems incapable of understanding any role it could positively play in a Crisis Intervention model. Most lawyers are even more clueless, preferring to invoke the adversarial nature of proceedings which is anathema to good crisis management. Crisis Intervention requires effective measures to alleviate conflict. Family court is without exception dealing with people in some level of crisis, its adversarial system enhances conflict by its very nature with its uncertainty, aggressive approach, lengthy delays and ambit claims by the hired guns of the legal profession. High running emotions run even higher under this approach. The court itself in this volatile climate then pretends to fully understand the character of each party before it and proceeds to make a final and binding decision amid the conflict with an unrepresentative snapshot of the parties operating outside of the normal behavioural characteristics. The very presence and nature of the court are variables that immensely increase the conflict and levels of animosity. Anyone au fait with the nature of crisis and crisis intervention would not recommend the processes engaged by the family court as part of a remedy. The adversarial process, whilst having merit in other jurisdictions is not conducive to good and sustainable outcomes in personal matters and should be done away with. Indeed, the very presence of any judiciary or 19
lawyers are counterproductive to good outcomes. It is past time to be rid of the court, judges and lawyers.
THE FAMILY COURT AND THE WELFARE OF THE CHILD AS PARAMOUNT INTEREST. Subdivision BA—Best interests of the child. 60CA Child’s best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. (2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Family Court Brisbane 1989. “The case in which an injunction was sought to restrain a pregnant woman from having an abortion was decided in Brisbane in 1989 by Lindenmayer J of the Family Court of Australia. In that case, In the Marriage of F,(125) the applicant sought an injunction restraining his estranged wife from terminating her pregnancy. Lindenmayer J dismissed the application. He affirmed that there were no common law rights that would support the husband's application. Specifically, he concluded that the so-called 'right to procreate' claimed by the applicant did not extend to giving him a right to force his wife to continue her pregnancy against her wishes, even if it was not clear that the proposed abortion would be legal. He also concluded that, because a foetus lacks legal personality and cannot have rights until it is born, a foetus has no common law rights that could be enforced by the applicant on its behalf. Lindenmayer J did acknowledge, however, that the Family Court had jurisdiction to grant the injunction sought. That jurisdiction was conferred by section 114(1) of the Family Law Act 1975 (Cwth), which empowers the court to make such order as it considers 'proper' with respect to proceedings that relate to a matter 'arising out of the marital relationship'. Lindenmayer J concluded, however, that it would not be 'proper' to grant the applicant husband an injunction in this case. He gave three reasons justifying this conclusion. The first reason was that the marriage between the parties to the case seemed to have broken down. Lindenmayer J's second reason was that granting the injunction would force the respondent to proceed with a pregnancy she did not want, and to give birth to a child she did not want and which she might resent, which he felt cast doubts on both her will and capacity to carry out her functions as a mother. His third reason was that granting the injunction would compel the respondent 'to do something in relation to her own body which she does not wish to do', which would be 'an interference with her freedom to decide her own destiny.' He acknowledged that refusing the injunction could be said to allow the respondent 'to interfere with the destiny of the intended child,' but said that this objection was answered by his finding that the foetus had no legal right to be born which the court could protect. He also acknowledged that refusing the injunction could be said to allow the respondent to override her husband's 'interest in having his intended offspring born,' but answered this objection by saying that, in the circumstances of this case, that interest was 'subordinate to the legitimate interest of the wife in being left free to decide a matter which affects her far more directly than it does the husband.” (Abortion Law in Australia. Natasha Cica, Research Paper 1 1998-99. Law and Bills Digest Group. 31 August 1998)
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DIVORCE REFORM : A RATIONAL DEPARTURE FROM THE TIN GODS AND THE STAR CHAMBER. Currently there are 37 highly paid family court judges and 68 circuit court judges dealing with family law matters. Combine the cost of their salaries etc with the cost of running the courts. ( Security, Buildings, Electricity, Maintenance, Renovations, Court Support Staff, Funding of Support Agencies, Travel. Communications, Computer/Network Support, Training and Conferences, Vehicles, Superannuation, Travel Allowances and specific amounts allocated to cases by Legal Aid ) and you have an astronomical amount in the hundreds of millions of dollars. These savings can be allocated to a new model which entirely replaces the court. A non-adversarial model based on negotiation by equal parties under the notion of 50-50 custody a 50-50 property of the marriage settlement ( with a new process of registering assets and property brought into the marriage at the time of the marriage and not being “property of the marriage”. Individual inheritances during the course of the marriage remain the property of the recipient not of the marriage. These fundamentals can be changed only by the consent of the possessing party and not any second or third party ). In the absence of a “family court” separating and divorcing parties enter into a non- adversarial and non-judicial process where the parameters are clear from the outset, thus alleviating stress and conflict. In cases were one or both parties are dissatisfied with the processes or model they have an option of going to a state based court to have their matter heard by a Jury at their own expense with the absence of legal aid and with the concept of “fault” introduced from that point on. The unit that would deal with these matters would be community based ( not a fly in fly out service as is currently the case in most of regional Australia). Staffed with an equal amount of men and women with equal qualifications. Staff at these units would carry out their duties in a culture of cooperation focused on best outcomes . This would also require the defunding of Relationships Australia and other like organisations who have been instrumental in the disfunction created by the current “mistake” family court and its systems as like the family court itself, they are tainted beyond redemption. A further source of funding for the new model ( although the redirected funds from the areas detailed above will be significant ) is the ABC. In past decades there was a clear argument and need for a publicly funded broadcaster. In recent times however, with the advent of Internet and the Information “Superhighway” the need for the ABC has waned. The ABC should be defunded and dismantled. The One Billion dollars allocated could be reallocated to Family law. Monies collected from the selling off of the physical assets held by the ABC could also be reallocated to the new model. Those ABC employees who collectively champion social justice could hardly object to this action. The funding from both sources would amount to an abundance of funds being invested into separating families almost cost free or revenue neutral for their greater good and not being swiped by the courts and its camp followers. The need to disband this court and establish a new model that well and truly meets the needs of the people is well overdue. The Tin Gods in the Star Chamber that is the Whitlam and Murphy family court have to go. Australians deserve much better. The need is for a non-adversarial process devoid of judges and lawyers, pursuing outcomes based on fair legislation negotiated in a calm and supportive environment by an organisation that has outreach in the community. An examination of the Orders given out by the Family Court will show little variance. They usually consist of Custody of children to the mother with access alternative birthdays and Christmas/school holidays. Weekend access at set intervals, sometimes by mutual agreement. Costs of court awarded against the Father/Man, property settlement of 60% to 85% to the female. Child support to the mother and a significant percentage of any superannuation to the female. It’s obvious on examination that Australia doesn’t need 37 judges being paid close to or over $500,000 pa along with the other costs associated with running this court, to achieve this. All that is required is an appropriate Excel Computer program. Change the names and dates. Press Save and Print and “Presto” a Family Court order. This type of computer model could generate Tens of Thousands of
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Final Family Court Orders in a few hours on one weekday afternoon with minimum expense, fuss or conflict. It’s Not Complex. These facsimile like orders are the end result and product of Australia’s financial investment in the “mistake” court. We deserve better.
“The others who must speak out in defence of marriage are the clergy. The destruction of marriage and families by the state directly concerns the churches, not simply because all matters of morality and justice concern the churches, but also because this particular controversy touches upon the integrity of their pastoral ministry. As long as marital and parental bonds can simply be legally dissolved by the state at the request of one spouse with no grounds, wrongdoing, legal action, or agreement by the other our pastors must consider how far they may be, however inadvertently, deceiving their flock and dishonouring their calling by encouraging young people to enter into a legal contract that has been stripped of its practical meaning”. ( Dr Stephen Baskerville, Testimony to the Canadian Senate, March 10, 2003 ).
FAMILY COURT AND DOMESTIC VIOLENCE ( DV) : CHILD PROTECTION AND HARM The family court, although promoted from the outset as being “No Fault” has taken on a role as an arbiter of things Domestic Violent ( DV ). Whilst this subject matter remains under the machinations of individual states, the family court has taken this issue on as one of its own. This is despite the fact that the family court has no investigative or operations arm. It is not open or easily accessible to the public and it does not exist at an institution in most regional and remote parts of Australia and it has limited week day only “opening hours” in metropolitan areas. It can only read material or hear from witnesses well away from and well past in terms of elapsed time, any other elements of circumstances involved in DV. Compounding this is the nature of DV Acts. In the Queensland Experience the DV Act is an affront to standards of legal process and procedural fairness. The current processes for engaging allegations of family violence regarding parties before the family court are poor in their design and application. This usually consists of an allegation being made and police and female organisations funded for such matters being involved. The accused ( usually a man who under the best standards of the law, is presumed to be innocent ) stands alone, with no community funded or specialised supports. The accused may, if it can be afforded engage a legal representative. In many cases reported by those accused, they highlight that several concerning actions take place during these processes. They report widely that their legal representatives advise them to acknowledge that the violence did indeed take place and “plead guilty”, (this being in a high number of cases where the accused is denying the allegation), on the pretext that accused should get the matter dealt with and out of the way to allow energies to be shifted to other matters of child custody, divorce and property settlement already before the court. In retrospect, many of the accused report that they regretted taking this advice and acting on it when they discover that admitting to such actions further prejudices their cases in the family court and that ultimately it was not the truth and it did not expedite their case as hoped. The experience is that far too many of the accused relate these circumstances regarding their experiences in relation to “best practice”. Even on the family courts own level of the balance of probability (the lingering doubt?), there has to be credence to a significant number of these cases, and this warrants further rigorous investigation by an independent body. In the case of “apprehended orders” the term “best practice” is a dubious title. As most are aware, “apprehended” in this context does not mean “ caught or taken into custody” but “having a fear of”. The standard here is a poor one. How can any court, any institution or any individual honestly and realistically determine the presence of genuine fear in an individual or determine how the actions of one may result in fear in another? Given the revelations of many of the accused above, how by these measures, can any court truthfully satisfy itself that it is dealing with the facts, and that it is in a position to make an order for a realistic remedy short of rigorous examination of the evidence including cross examination of witnesses. This is truly the realm of snake oil sales and charlatans. Yet it seems to be “best practice”. Poor Australia!
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Perhaps we can we look forward to apprehended political corruption orders, apprehended robbery orders, apprehended drunk and disorderly orders, apprehended trust account fraud orders, apprehended flood damage orders and apprehended bushfire damage orders, on the pretext that “it did not happen, but I have a fear that it will”. Such nonsense lies as the base of “best practise”. Did Franca Arena have “apprehended” concerns which should have resulted in “apprehended“ court orders? The court cannot by any measure, real or implied, support “best practise” as this is a pipe dream which does not exist in reality. What exists is a fallacious system designed and adhered to by those who, in the words of Cicero, “benefit” from such machinations. The family court deludes itself if it thinks, even in moments of its highest levels of unbridled fantasy, that it “supports best practise” by placing individuals at the mercy of the current family violence procedures. As stated above, the family court has neither the means or the structure to deal with these issues. That leaves the accused stuck between the proverbial rock and a hard place. What possible choice could the accused make between the family court and its inability and the state based domestic violence system as it currently exists, in order to defeat allegations of family violence falsely made against them. Where do they go, and why is the family court supporting their pitiful flight as part of the so called “best practise” which is levelled against them.
Current “Best Practice’ involves: Decades of the court pandering to feminist interests and watered down definitions of “family violence”. The family court is now in the position where it cannot objectively determine what family violence is. The number of West Australian mothers neglecting their children is almost three times as high as cases involving fathers, new data shows. Statistics from the WA Department of Child Protection reveal 1505 cases of substantiated child abuse were recorded in 2007-08, the West Australian reports. Some 582 of those abuses were carried out by parents, with mothers accounting for 73 percent of cases while fathers were responsible for 27 percent.
But fathers were behind some 85 percent of sex abuse cases against children. ( there are high numbers of cases where women are sexual offenders against children, these are just not reported to authorities). “Female sexual offending may be even less likely to be reported than sexual abuse involving male perpetrators”. ( Csgoi and Sargent 1992 and Rosecrans 1997 in Perspectives of Female Sex Offenders-A Culture of Denial Myriam S Denov, 2004).
The overall number of reported cases 1505 was a significant increase on the 960 instances reported in WA in 2005-06. In those years, mothers were responsible for 312 cases while fathers committed 165. The higher proportion of mothers being behind abuses was probably also the case for all Australian states, not just Western Australia, said Australian Centre for Childhood Protection director Dorothy Scott. But she warned the figures did not necessarily show that mothers were more likely than fathers to commit neglect. "Children are much more likely to be in the care of their mothers," ( an argument as valid as supposing that young men are more violent at hotel bars, because they are more numerous at hotel bars….Italics Mine. Author CS ) Professor Scott told ninemsn. "[These figures] would reflect the preponderance of children living with their mothers, often in single-parent households." She added that more specific data about the victims' living arrangements would be needed to draw a proper comparison of the instances of abuse involving mothers and fathers.
Published in The Independent Monthly - November 1995, this article written by John Coochey, a Canberra based economist, raised the issue of false statistics being used by extreme feminists to lobby for government funds and further their own agenda. John also recognised and alerted the
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public to the questionable methodology proposed for use in Carmen Lawrence’s $1.3 million Women’s Safety Survey that was published in December 1996.
Dodgy figures and suspect ideological interpretations give the impression that violence by men against women is rampant says John Coochey. The reality is very different. NAOMI WOLFE wrote a best seller, The Beauty Myth, based on the premise that 150,000 American women die of anorexia nervosa each year. The actual figure for 1991 was 54, according to the US National Centre for Health Statistics, these days people will accept even the wildest claims, as long as they make women out to be victims. Particularly if they also put men in a poor light. Since the 1980s it has become increasingly difficult to read publications from bodies as diverse as the federal government, the United Nations children's fund and Amnesty International without finding wildly exaggerated claims about violence against women. Frequently, such bodies put out information which varies from misleading to simply false. Some academics contribute to the confusion, in the media. In one recent case, a University of Adelaide law lecturer, Hilary Charlesworth, stated on the ABC show Women Out Loud that the majority of victims in war were now women. She later gave the Red Cross as the source. In fact, the Red Cross does not collect such figures, although it has stated that 80 per cent of the world's refugees are women and children. Presumably men are unrepresented because they are either still within the war zone or are dead. In May 1995 a Queensland academic, Jeanne Madison, was reported as having stated that 67 per cent of nurses she had surveyed complained of being the target of sexual harassment. But this included any unwelcome phone calls and requests for dates. not necessarily persistent ones. An Australian sociologist. Michael Bitman. Has done a study called Juggling Time on the number of hours worked, paid and unpaid, by men and women. He found that, although women do more housework, men put in more hours overall. The federal government's Office of the Status of Women (0SW) subsequently published a booklet, Selected Findings from Juggling Time, which focused only on the unpaid work, thereby portraying women as the losers. But falsehoods are most prevalent in the field of domestic violence. In 1987 the Office of the Status of Women ran a campaign which stated that one in three married women was at risk from domestic violence. This number is still in wide use and was widely accepted until Melbourne film maker Don Prahn made a documentary, The Deadly Hurt, on which federal minister for family services, Senator Rosemary Crowley, was asked about the source of such claims. "Why are you worried about a little bit of wrong analysis?" was her answer. The sources 0SW subsequently gave for its claim were the book Behind Closed Doors, written by three American social researchers, Straus, Gelles and Steinmetz in 1980, and the Canadian Juristat study. Behind Closed Doors actually states that one in three households would experience some degree of domestic violence but in half the cases the woman would be the perpetrator. These findings have been repeated in at least 30 studies since then. In fact, male-female violence has decreased while female to male has increased. The Juristat study had a figure of problems in 30 per cent of households but half of these involved mild sexual harassment, not violence. Juristat was criticised by the Australian Bureau of Statistics as many of the questions were leading and would have resulted in biased answers. In late 1994 the Office of the Status of Women approached the Australian Bureau of Statistics to do a survey titled Male Violence Against Women. The survey will cost $1.3 million with some money coming from the department of human services and health. Leaked ABS documents show considerable anger from some staff that no men will be allowed to participate in operational aspects of the survey, and about the nature of the survey. Some professionals have dubbed it "advocacy research", designed to come to a predetermined conclusion (see box page 63). Normally the involvement of participants in ABS surveys is compulsory to ensure that the respondents reflect the population as a whole, but this one will be voluntary. In an extreme case, only women who claim to have been assaulted would bother to respond. It will not look at domestic violence against men or children and originally 0SW refused to countenance the inclusion
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of female-to-female violence, despite the fact that 26 per cent of assaults against women are by other women. Some professionals believe a comprehensive survey of domestic violence could be run for the same cost. Some ABS staff questioned the need for the survey at all as an existing survey, Crime and Safety in Australia, had shown that only 0.7 per cent of women had been subject to assault or threat of assault in their own home in any one year. (a reduction of 25 per cent since 1983). That study showed that, overall, men are nearly twice as likely to be victims of violence as are women. Proposals to widen the study were ridiculed in a Letter to The Canberra Times (Feb 9) by Kathleen Townsend, head of 0SW. "To suggest that any planned research on women's experience of violence should look at women as perpetrators is about as logical as the proposition that a child abuse survey should include data on child bullies," she wrote. There are good reasons why 0SW does not want domestic violence in its entirety studied. International studies such as Behind Closed Doors show that when interspousal violence is examined it is pretty much gender neutral. For the US about 15 per cent of women experience domestic violence at some stage in their lives, but so will 15 per cent of men. The more urbanised the society, the more equalised the violence. When violence against children is included women take the lead as perpetrators. In Australia, a 1995 study in four Victorian hospitals by Virginia Routley and Jenny Sherrard using data from the Victorian injury surveillance system (VISS) showed surprisingly high levels of admissions for men who were victims of domestic violence. Indeed, the original published findings showed 40 per cent of all domestic violence victims who required hospital admission were men who had been assaulted by their partners. This figure was later reduced to 28 per cent by the authors. The authors used three categories: confirmed, probable and suggestive. If the methodology had been applied consistently to both genders, there may have been more male victims than female because women who had injuries, they claimed were due to other causes could be classed as "probables". A refusal to be reinterviewed could be enough for a woman to be included as a victim. The same methodology was not used for men even though they are less likely to report being beaten by a spouse. The authors of the study state that previous studies defined "probable" as "those cases where the injuries were not sustained in a street assault, mugging or robbery". If applied to the VISS population as a whole this would mean that males heavily outweigh females as "probable" victims of domestic violence. An existing survey had shown that only 0.7 per cent of women had been subject to assault or threat of assault in their own home in any one year. On 26 April, federal health minister Carmen Lawrence launched a media release for "National Stop Violence Against Women Day." That statement said, in part: We also know that domestic violence comprises one of the largest areas of police work - some 70 per cent according to New South Wales figures ... Victorian police report that they received more than 14,000 calls involving domestic violence in 1992 ... There are no national statistics on the nature and extent of violence against women, but we do know that on any night in Australia, approximately 5,000 women and children seek accommodation in refuges - most of whom are escaping violence ... And in Queensland, a 1992 study showed that one in five women admitted to the Royal Brisbane Hospital’s emergency department was a victim of domestic violence. I have looked at the source for each of these extraordinary claims. The officials responsible told me the 70 per cent of police work figure came from an ACT community law reform paper, Research Paper No.1, (Australian Institute of Criminology, Canberra 1993). The actual figure in that report for the percentage of police call-outs to all domestic incidents is 3.5 per cent, of which only one in five involved an assault]I. (including male on male). This is 0.7 per cent, not 70.
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Victorian police crime statistics for 1993-94 show 13,485 call-outs to family incidents. Only 13.7 per cent definitely involved violence against the person, which would amount to one-tenth of 1 per cent of households in Victoria. Fewer than half of these resulted in charges being laid. In 18 per cent of the total incidents the complainant was male and 17 per cent involved parents and children. Victorian police operating procedures now include "threatening to damage property" and "behaving in an offensive manner" as "violence." 0SW originally claimed that the figure of 5,000 for the number of women and children seeking refuge came from the national census, which actually shows the number in accommodation, not seeking it. The official figure is for "Hostels for The Homeless, Night Shelters and Refuges". There were 6,607 people in this category - l,614 children, 1,271 women and 3,722 men. In other words, men outnumbered women and children put together. There was no indication if any of these people had been subjected to violence. Subsequently, 0SW claimed the figure came from statistics compiled by the supported accommodation assistance program (SAAP) and from a paper by the Australian Institute of Health and Welfare. In fact, the SAAP figures show that on each night about 280 women claiming that they are the victims of domestic violence seek accommodation at a refuge. The AIHW paper suggests a lower figure. The figure for Queensland is claimed to come from a study done in 1990 by Gwen Roberts, of the department of psychiatry at the University of Queensland. In fact, the study was done in 1991 and the only publication so far occurred in the Medical Journal of Australia 1993. That study actually concluded that "one in 100 emergency department attendances is as a result of domestic violence". The 20 per cent figure refers to women attendees who claimed to have been victims of "domestic violence" at some time in their adult lives. That included being pushed or verbally abused. There is no evidence that any were actually admitted to hospital. Frequently the Australian media draw on faulty data from abroad. In December 1994 an article appeared in The Canberra Times titled Violence Against Women Now the Most Common Crime - UN, based on the United Nations Children’s Fund report The State Of' The World’s Children, 1995. The relevant page was headed The Greatest Abuse - Violence Against Women. Almost all of this was taken from a report by a Lori Heise for the World Bank which the bank has refused to endorse. It begins with a number of "illustrative quotes" to set the theme of the report, such as, A wife is like a pony bought; I'll ride her and whip her as I like. The paper is based on 40 surveys which it claims show the level of violence against women world-wide. Many of the surveys are not based on statistically valid samples but are what Heise terms "convenience samples". Some of the surveys which she claims are based on random samples are not, because many of the sample group refused to participate, which will normally bias answers towards the positive as only those with an interest in the issue will bother to participate. Five of the six surveys which relate to rape use the Sexual Experience Survey developed by Mary Koss in America. This was discredited when it was realised that three-quarters of those classified as victims did not consider that they had been raped at all. According to Koss, up to 27 per cent of all women are victims of rape. A recent International Crime Victim Survey found that the figure for Australia was in fact 1.1 per cent. Heise states that 27 to 62 per cent of women recall at least one incident of sexual abuse that occurred before they were 18. The Australian Institute of Health and Welfare's 1994 study Child Abuse and Neglect gives a figure slightly over 1 per cent. Heise's claim was allegedly based on a study by S. Peters, A Sourcebook On Child Sexual Abuse, which summarised the results of existing studies. In fact, his findings ranged from 6 to 62 per cent for women and 3 to 30 per cent for men. He concluded: "The situation is confusing. The reality is that there is not yet any consensus among social scientists about the national scope of sexual abuse." He found varying definitions of sexual abuse in the surveys he studied. The survey which gave the highest figure included the following question: "During childhood or adolescence (before the age of 18) did anyone attempt to have intercourse with you?" and "During childhood and adolescence, did anyone try to have you arouse them, or touch their body in a sexual way?" Thus, any teenager who has been involved in a mutually consenting petting session is now a victim of sexual abuse.
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One figure which did not get into the UNICEF report was from the Brazilian national criminal justice census of 1988. For the period October 1987 to September 1988, 1,153,300 people declared that they had been the victims of physical abuse; 60 per cent of the victims were men and 40 per cent were women. Thus, even for third-world countries it seems inappropriate to term violence against women "the greatest abuse One of the key lines in Carmen Lawrence's April 26 press release was: These statistics are shameful and demand exposure. Well, yes. A Question of Methodology. The following comments were made by male and female staff members of the Australian Bureau of Statistics using the bureau’s internal e-mail after the Office for the Status of Women approached it in late 1994 to conduct a survey called Male Violence Against Women, Freely available information on this survey has been pretty thin compared to that usually available during the development of other surveys which I have had to deal with . . I think part of the reason for the lack of freely available information is that those responsible for the survey want to minimise the involvement of men. In fact, just today I was told that is the case and a special exemption from sexual discrimination is about to be provided, so it looks like I won 't be involved. Australia currently lacks a comprehensive study of domestic violence with reliable and valid information. Perhaps public funds would be better spent getting such a comprehensive picture first. Would it not be possible to convince the powers that be that, as there is already a survey being funded to gather some of the data, they should take advantage of this and with the addition of a minuscule more funding extend the survey to cover all forms of domestic violence? Now that a number of surveys in the ABS are being financed by users, it is imperative that we remain objective and that we ensure that the methodology of such collections is soundly based. In the past, I have raised with senior management the possibility that in, the current environment we are in danger of dancing to the piper's tune with surveys funded in this way. Now it appears my concerns are well-founded I have it on good authority that the methodology for this survey is flawed and it appears that it is being deliberately manipulated by 0SW to achieve the survey results that they desire. Has anyone been following the development of the Survey of Violence Against Women? It is becoming increasingly clear that the Office of the Status of Women are not interested in getting an accurate picture of domestic violence nor are they interested only in violence against women. They are interested only in violence against women by men.. - we should be asking if this survey is in the best interest of the public. What purpose does it serve? What uses will such data be put to? I have serious concerns about this survey and do not feel that the ABS should be involved if it continues to develop along these lines.
Fatal child abuse ( the US Experience : Similarities to Australia). Child deaths resulting from parental abuse are unique among homicides in terms of the high proportion of women offenders. Female offenders are usually biological mothers, whereas male perpetrators are usually de facto or step parents to the child victim (Alder & Polk, 2001).
It has been found that de facto or stepparents kill children in their care at a much greater rate than biological parents, with many more stepchildren killed by stepfathers than by stepmothers (Daly & Wilson, 1994; Strang, 1995). The greater rate of harming by stepfathers is in part due to small children rarely residing with biological fathers and stepmothers (Daly & Wilson, 1994).
Most researchers who have used police homicide records suggest that the majority of perpetrators are males (Lyman et al., 2003). However, many deaths due to maltreatment may not meet the
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criminal definition of homicide, particularly deaths due to neglect (Finkelhor, 1997; Lawrence & Irvine, in press).
The US National Incidence Study (Sedlak & Broadhurst, 1996), which is based on child maltreatment cases that include neglect, showed that almost 80 per cent of fatal maltreatment cases were attributed to female perpetrators.
Studies have shown that mothers are predominantly responsible for neonaticides (death of child aged under 24 hours) (Creighton, 1995, Finkelhor & Dziuba-Leatherman, 1994). These women tend to be young or immature women who are ill-equipped to deal with pregnancy and the care of a child (Finkelhor, 1997). There is evidence that men are most often responsible for child deaths that result from physical assault (Ewing, 1997).
Eight Times the Risk in Blended Families Queensland Children’s Commissioner releases study reveals that child abuse in step and blended families is eight times that of other families. ( Courier Mail Bris. 20 September 2006 P11 ). A US Study into Child abuse and Family Violence The Third National Incidence Study of Child Abuse and Neglect (NIS-3) from the US Department of Health and Human Services (DHHS) and also from data in a report from the Bureau of Justice Statistics (BJS) entitled "Child Victimizers and Their Victims". The DHHS and BJS reports reveal some startling conclusions about who really commits child abuse. The DHHS report contains clear and undeniable evidence that the majority of child abuse is committed by mothers, not fathers. This runs counter to the standard mainstream-media depiction of child abusers as being almost exclusively male. The report includes the following items: • Table 5-3 shows that children in mother-only households are almost 4 times more likely to be fatally abused [read: murdered] than children in father-only households. • Table 5-4 shows that children in mother-only households are 40% more likely to be sexually abused than children in father-only households. • Table 6-4 shows that females are 78% of the perpetrators of fatal child abuse [read: child murder], 81% of natural parents who seriously abuse their children, 72% of natural parents who moderately abuse their children, and 65% of natural parents who are inferred to have abused their children. • Table 6-3 shows that natural mothers are the perpetrators of 93% of physical neglect, 86% of educational neglect, 78% of emotional neglect, 60% of physical abuse, and 55% of emotional abuse. • Table 6-3 also shows when the perpetrator is a non-natural parent, that males [read: non- biological fathers] are the perpetrators of 90% of physical abuse, 97% of sexual abuse, 74% of emotional abuse, and 82% of educational neglect. • Table 5-2 shows that children are 20 times more likely to be fatally abused, 22 times more likely to be seriously abused, 20 times more likely to be moderately abused, and 18 times more likely to be sexually abused in households earning less than $15,000 per year [read: father-absent households] than in households earning more than $30,000 per year [read: father-present households]. • Table 4-2 shows that boys are four times more likely to be fatally abused and 24% more likely to be seriously abused than girls .
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• Table 3-4 shows that between 1986 and 1993, as the number of single-mother households increased dramatically, fatal child abuse increased 46% and serious child abuse increased fourfold. • According to the government's own figures, females kill 31 times as many children as natural fathers. The conclusion is unavoidable: Females, NOT males, commit the vast majority of child abuse, regardless of how the media ignores the figures.
Total Children Killed in 1993 I1,500 ---,Killed By Natural Parents 1,200 Killed By Non-natural Parents I300 ---,Killed By Females 1,170 Killed By Males* I330 ---,Killed In Mother-only Households 476 Killed In Father-only Households I14 *Of the children killed by males: 14% By Natural Fathers: 37 86% By Non-natural Fathers: 227 20% By 'others': 66
The US Government's 1997 report Child Maltreatment found 62.3 per cent of perpetrators were women.
The Heritage Foundation Study, The Child Abuse Crisis, found that of the approximately 2000 children killed each year, 55 per cent were killed by mothers, 25.7 per cent by live-in boyfriends, 12.5 per cent by stepfathers, and 6.8 per cent by biological fathers. The 1995 report US National Incidence of Child Abuse and Neglect found that where maltreatment led to death, 78 per cent of perpetrators were female. Boys were four times more likely to be fatally abused and 24 per cent more likely to be seriously abused than girls.
The book Broken Homes and Battered Children reports that the child of a biological mother cohabiting with a man other than the natural father is 33 times more likely to suffer serious abuse that a child with married natural parents.
While it is acknowledged that the experience of the USA is not the Australian experience, it is apparent that our societies, culture and laws are similar. It is therefore legitimate to make such comparisons. (Italics mine Author CS ) Although there is a contention over what constitutes a substantiation, the latest statistics from the Australian Institute of Health and Welfare, based on an amalgam of data from some states, suggests 31 per cent of child abuse cases occur in natural
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families, 20 per cent in step or blended families, 40 per cent in single-mother households and 5 per cent in single-father households.
Clearly, based on these figures the Australian family court has a lot to answer to. By its practice in placing children in single female headed families and reconstituted step/defacto families as far away as possible from the children’s natural father and by allowing an ongoing and easily identifiable process to limit the contact between children and their natural fathers, it is in the business of making decisions to place children in high risk situations. It has a demonstrable history of not placing children with their natural father, who can be easily identified ( once the political agenda is pared away ) as the safest and most reasonable option for the placement of children once a separation or divorce has taken place. As we know, reasonableness and low risk behaviour is not in the court’s repertoire.
Appropriate legal representation is provided in such cases. The family court is not capable of positive or effective action in relation to cases where violence is alleged to be present. It seems necessary for the family court to retreat from any notion of engagement in cases where there is some possibility that an element of violence may be encountered. The family court would do best by stepping out of the picture completely and leaving intervention where violence is suspected to be present, to the experts in those fields. Its orders should be based on conclusive and tested evidence placed before it.
QUEENSLAND DOMESTIC VIOLENCE ACT: AN AFFRONT TO HUMAN RIGHTS & PROCEDURAL FAIRNESS : STALIN REVISITED. An examination of the DV Legislation of Queensland gives great cause for concern. Inherent in the Act are these parts.
46. Standard of Evidence. A temporary protection order need only be supported by the Evidence that the court considers sufficient and appropriate Having regard to the temporary nature of the order.
145. Evidence (1) In a proceeding under this Act, a Court --- (a) Is not bound by the rules of evidence or any practices or procedures applying to courts of record; and (b) may inform itself in any way it considers appropriate. (2) If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities. (3) To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order. 158. Court to be Closed. ( Similar Star Chamber provisions to Section 121 of the Family Law Act ).
Sections 46 and 145 are scary departures from what is usual court procedure for what is the criminal charge of assault. It smacks of Lionel Murphy’s “Interstate Commission Bill” and is inherently Marxist in its nature. Anyone labelled the “respondent” and hauled before the single magistrate in this
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jurisdiction under the provisions of this Act has little chance or departing that chamber short of some kind of DV order being applied to ---them him. Former family court judge Peter Underhill ( OBE ) who was charged with criminal offences of sexual misconduct involving a 16 year old boy at the appropriately named “dickey beach” public toilet block on Queensland’s Sunshine Coast was ultimately acquitted. He may not have fared so well if he had been subject to the provisions and parameters of the DV Act shown above. No Jury, in a court not bound by rules of evidence, practices and procedures applying to courts of record, informing itself in any way it considers appropriate and “need notting” the personal evidence of the aggrieved before making a decision in a closed court. Underhill may well have been convicted had that been the case. Outrageous you say. Well not so…Queensland Men face this kind of “justice” every day of the week under the very provisions of that Act. Little wonder “DV Orders are overwhelmingly increasing in number”. The family court has no business in relying on state based DV Orders, delivered by this kind of tyrannical legislation, to make any determination regarding allegations of violence by parties before it. DV Orders themselves are overall inherently unreliable given the tests of evidence undertaken in the state based DV Courts under various DV Acts ( as shown above). Unless more rigorous examinations of evidence are invoked the DV orders remain under a cloud of doubt in the minds of reasonable people. Many have lost faith in the justice system because of their processing under this jurisdiction.
Family court is not structured to deal with family violence and given the State Government responsibility for matters of crime, including family violence is it reasonable to expect this already stressed and non-coping ( it deals with only 5% of cases by its own admission and it barely manages to provide a service to this small percentage of individuals) institution to realistically deal with family violence, especially given its unengaging, clinical, isolated, divisive and authoritarian approach to task. We need to recognise that the family court is not a child protection agency, and reasonably, so should it. It is also not a police force that can deal directly and effectively with family violence. It has neither the resources nor expertise or role to deal with these issues ( Child Safety Practice Manual, Department of Child Safety Queensland 15.1). And nor should it be so equipped. It should (in highly modified form ) limit itself matters of divorce, child custody ( not spousal maintenance as this is recognisably included in child support payments) limited spousal maintenance where no children to a marriage exist and to property settlement. The family court is not in a position to deal with family violence in any real capacity, its countless victims, including Darcey Freeman are testimony to that. The lack of ability by the family court to deal with these issues are inherently associated with its charter and structure. The family court is open only ”during business hours” in metropolitan areas. It has less to no profile in regional areas, opening its doors only every few weeks if at all. It has no means to deal with violence, it has no investigating officers, no intake and assessment team and it is closed afterhours and weekends, with no emergency contact telephone or staff. Its decision making staff, (judges and registrars ) are isolated, untrained in child protection intervention and removed from easy public access. The very best that the court can do to deal with allegations of violence is to refer these allegations on to the relevant state authorities to respond to. The court and its associated professions appear to have less than a juvenile understanding of the disclosure by children processes. The experience of those organisations who seriously engage with families ( as opposed to the family court ) where violence or abuse is suspected, or present is that disclosure is not something which is easily made in the majority of cases. The court lacks this basic understanding. It operates on the simplistic rule that if you hand a potential victim a form for them or their legal representative to fill out, that this is the sure cure for all things violent and that this action actually achieves something other than giving the victim a false sense of security.
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This approach lacks the inherent wisdom gained from the experience of other organisations in dealing with these matters. In order to effectively gain quality information regarding the personal details and actions of individuals, in the absence of physical evidence and eye witnesses, there has to be trust. This trust is gained by engaging individuals in the helping relationship. This takes time and genuine effort. In many cases, disclosure may take many years to manifest. In some cases, disclosure is not forthcoming and perhaps it may never occur. Usually, disclosure emerges from significant time and effort of genuine empathy and concern in an atmosphere of trust and ongoing contact, usually through casework (another area in which the family court has no interest, expertise or track record ). There is a wide and probably accurate perception in the Australian community that the family court, whilst deluding itself, deludes few others in relation to this matter. This ”helping court” not only lacks the structure to deal with violence itself, it also lacks the expertise as well as the casework approach necessary to effectively deal with violence. Consequently, any potential victim, armed with the above knowledge would be foolish to place faith in this court. It can do very little to combat violence or it seems, to protect the vulnerable. (given that 95% of cases are settled by “consent” there would appear to be no allegations of violence or child abuse present in those cases, why would the court allow consent if such concerns were evident). In the case of Darcy Freeman ( and relying on the only source of the usually gate kept, spun and limited information that the Australian public has in relation to matters that go wrong in this ”helping” court, the media ) it seems that yet again the court has failed to protect the young and innocent and it and its supporters and practitioners are quick to make excuses to exonerate themselves. On ABC Television “Lateline” 27 August 2009 this very family court inquiry was discussed. In relation to the death of Darcy Freeman, part of a statement to the media made by Darcy’s uncle, Tim Barnes was televised. He said in part, “We feel that the judicial system has failed our family and will continue to fail other families until someone in authority starts to take action. “ Immediately after these words, Lateline televised Diana Bryant with her response. “ I have no idea what they meant by that” ( seemingly pleased with her claim to ignorance by the broad smile on her face as she spoke at this juncture ). She went on to explain : “ This was not a decision by a judge reached after a hearing. These parties reached their own agreement about what the order should be……it may be that people are concerned to seek, draconian orders if you like, for fear that they might be thought of as being difficult access parents, I don’t know…..”. Can it be that the court’s highest officer is without a position in relation to the death of a child, a child whose welfare the court is charged and obliged to consider as “Paramount”. What a poor position for someone who is at the pinnacle of a legal/judicial career, shame Diana, shame! Are we to seriously believe that parties before this invidious court are free to “reach their own agreement about what the order should be” without any form of judicial consideration, however arbitrary? Who’s in charge? There is also the question of the “stealing” of the court’s file on the Freeman family soon after this tragic event. If one is to believe the ( again only the media reporting on the secret court ) reports regarding this matter, Diana Bryant travelling alone in the commonwealth vehicle provided to her by the taxpayer, parked in an inner city Melbourne Street. She apparently left this vehicle unlocked with, a briefcase containing the Freeman file in wide view on one of the vehicle seats. Imagine her shock and despair when she returned to the vehicle to discover the briefcase and its contents gone. Reports in the media stated that the file contained transcripts of matters before the court immediately prior to the Freeman tragedy ( possibly the day before). The Australian Public shall never know that took place that day before the court and which judge presided. How “ inconvenient”. The Australian public has every reason to question the circumstances surrounding this “theft”. Diana Bryant, as the court chief judge, having worked her way up through the legal profession and through the Federal Magistrates Court, would surely have a working knowledge of file security. It is a common practice that family files ( in real and responsible institutions at any length ) are kept in secure surroundings. Files generally are not permitted to be removed from offices or buildings except under secure document transfer, even when subpoenaed. Dianna Bryant must surely be aware that the movement of confidential family material in the manner reported is not acceptable. Even the most junior bureaucrat working in the lowest level of any public office would hesitate to 32
duplicate or repeat the performance of Dianna Bryant in this case. If her version of the matter is to be believed, then at the very least she should face disciplinary action, part of which would be an induction to file security with a demonstration of required competencies by an independent task master. Perhaps she could consider admonishing herself and demoting herself ( as no one else in the land has the authority to do so ). Whilst the media widely condemned the Father in the Freeman case, the Slaughter of 8 Children in Cairns by a female ( the most callous example of Domestic Violence on Record in modern times ) was met with less than critical treatment by the media in comparison to the Freeman case.
The promotion of Secrecy surrounding the Darcy Freeman murder, and other murders within its jurisdiction, by the family court is not to protect the innocent, as in the Batty case, they clearly have not been protected by this inept system. The Secrecy is to protect those who failed to protect. Clearly the filling out the appropriate form is clearly not the answer. The court has failed immensely in respect to allegations of violence within its jurisdiction and Australians cannot be expected to continue to take the very real and deadly risks associated with this inept court. All cases where violence has occurred and the court has been aware of the risk of such violence, should be identified and reviewed with a view to determining if a lack of duty of care was present by the court, followed by appropriate disciplinary action. If such a process should identify a judge or a number of judges where there is evidence of a series of such matters across a number of cases, then appropriate action under Section 72 of the Constitution, should be taken by the Parliament in relation to those judges with the resultant dismissals.
“Dickens observation the one great principle of the law is to make business for itself could hardly be more darkly validated. Nothing in the law requires a judge to grant the divorcing parents initial request to strip the other parent of his children. A judge could simply rule that, prima facie, neither the father nor the children had committed any infraction that would justify their being forcibly separated, and that neither the mother nor the court had any grounds on which to separate them. Yet such rulings are virtually unheard of. One need not be overly cynical to notice that judges who made such judgments would be rendering themselves largely redundant and denying earnings to a massive entourage of lawyers, custody evaluators, psychologists and psychiatrists, guardians ad litem, mediators, counsellors, child-support enforcement agents, social workers, and other hangers-on of the court, all of whom profit from the custody battle and have a strong say in the appointment and promotion of judges”. ( Dr Stephen Baskerville, Testimony to the Canadian Senate, March 10, 2003 )
THE ELEPHANT IN THE ROOM SUICIDE OF MEN AND FATHERS. Various inquiries into the workings of the Family Court over 3 decades or more, have demonstrated a lack of zeal in examining this issue. They have continually omitted any term of reference to specifically deal with it, demonstrating total denial. Not only have these inquires failed to examine one of the most concerning variables associated with the family court and the child support agency, the Parliament itself, both the House of Representatives and the Senate have failed to admit to this issue in the 44 years of this court’s existence. The 1991 Joint Select Committee of Inquiry ran like cowards at the mere suggestion of including Suicide of Men as a term of reference. The court itself is renowned for its inability to accept any kind of criticism and is itself in denial in relation to its part in the suicide of Tens of Thousands of Australian Men and Fathers. Retired Chief Judge Nicholson is on public record as on suicides and murder suicides, “I really object to the suggestion that the court in any way brings about these sorts of situations”. ( it should be noted that Nicholson himself was a failed candidate for the ALP in 2 Federal Elections during the 1970s, 1972 and 1974 for the Federal Seat of Chisholm, before he was appointed to the family court by the Hawke Government. Thus, bringing party politics into the court ). This is what the Labor Party does with its failed candidates, it dumps them in the family court. The denial is obvious, from the top down it seems.
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The issue of the deaths of men under family court orders or as Child Support Agency ( CSA) “Customers” is one that is difficult to quantify in sheer numbers. The Australian Brotherhood of Fathers ( ABF ) have their 21 Campaign, implying that the 3 suicides a day inherent in the Family Court and CSA client body is reasonably quantified at 21 a week. While some may not agree with this figure, the parliament, the Family Court and the CSA have never denied or questioned these figures. As far back as 1989-1990 questions were asked in the Senate by Grant Chapman regarding the Deaths of parties to family law. The response from the ALP’s Senator Tate clearly indicated that no one is counting these deaths. No one is remotely interested. Not the Parliament, not the Professions and certainly not the Family Court. These are the details :
Senate Hansard Tuesday, 21 November 1989 Page: 2968
(Question No. 1243)
Senator Chapman asked the Minister representing the Attorney-General, upon notice, on 28 September 1989:
(1) How many family law files were closed because of the death of one parent for the 10 years prior to the introduction of the Family Law Act.
(2) How many family law files have been closed because of the death of one parent for each year since the introduction of the Family Law Act.
(3) Of those who have died, how many were custodial parents.
(4) How many were mothers.
(5) How many were fathers.
(6) How many children have died in each year since the introduction of the Family Law Act who were subject to the jurisdiction of the Family Court.
Senator Tate —The Attorney-General has provided the following answer to the honourable senator's question:
(1) Jurisdiction in respect of the Matrimonial Causes Act 1959 was exercised by the State and Territory Supreme Courts. Separate records were not kept by those courts in relation to the number of files closed because of the death of one parent. To obtain this information would require a search of thousands of individual files in each Registry of those State and Territory courts and this is not practicable.
(2) Jurisdiction in respect of the Family Law Act 1975 is exercised by the Family Court of Australia, the Family Court of Western Australia and State and Territory Magistrates' courts. Separate records are not kept in relation to the number of files closed because of the death of one parent. To obtain this information would require a search of thousands of individual files in each Registry of those courts and this is not practicable.
(3) to (5) See answers to question (1) and (2).
(6) Records are not kept in a form that enables this information to be readily extracted. Searches of State and Territory death registries and of thousands of individual court files would be necessary. This is not practicable.
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Senate Hansard Wednesday, 9 May 1990 Page: 169
(Question No. 1439)
Senator Chapman asked the Minister representing the Attorney-General, upon notice, on 21 December 1989:
(1) Following the Minister's answer to my question on Notice, No. 1243 (see Senate Hansard, 21 November 1989, page 2964) regarding family law matters, what action is proposed by the Attorney- General's Department to record the following statistics while matters are subject to the jurisdiction of the Family Law Act 1975: (a) how many family law files will be closed in 1990 and each subsequent year because of the death of one parent; (b) of those who will die, the number who are custodial parents; (c) the number who are mothers; (d) the number who are fathers; and (e) the number of children that die.
(2) If no action is currently proposed, will the Attorney-General ensure these statistics are recorded, in view of growing community concern about the possibility of family court-induced, stress-related deaths: if not, why not.
Senator Tate —The Attorney-General has provided the following answer to the honourable senator's question:
(1) (a)-(e) No action is proposed by the Attorney-General's Department to record the statistics requested concerning family law files that will close in future years due to the death of a parent. Following the passage of the Courts and Tribunals Administration Amendment Act 1989 the Chief Justice of the Family Court of Australia now has responsibility for the administrative and financial management of the Court. The Chief Justice is required to submit annual reports which are to be laid before each House of the Parliament. Parliament will have the ability to examine those annual reports.
(2) For the reasons given in answer to question 1 (a)-(e), the Attorney-General is not in a position to ensure that the statistics are recorded.
There has been no attempt since that time to quantify the deaths. The ABF and its 3 a Day campaign goes unchallenged from the parties responsible. The Authorities are in no position to negate the ABF figures. In an attempt to clarify the suicides with available material the below graph has been generated ( attached Appendix 1 ). Whilst it is not within the scope of the graph to demonstrate correlation, it does give an accurate visual on the sheer numbers and trends adjacent to significant dates associated with family law and warrants further analysis. Such analysis would in the perfect world, be undertaken by the Parliament, the Professions or the Court (by the Courts publicly funded Public Relations Unit, the Australian Institute of Family Studies ) but they have not attempted this, and it is left up to individual unfunded, unsupported persons to bring this material to public view ).
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The Suicides, Murder Suicides and Murders associated with this Court and the CSA are a blight on the Australian community, but an even bigger blight on the court and our Parliament. The Courts, The Professions, The Media and the Parliament cannot bring themselves to and do not face the responsibility for these acts. Their response thus far has been to avoid the issue and attempt to sweep the entire issue under the carpet.
We all saw the crocodile tears in the Parliament when ALP Member Greg Wilton suicided on 14 June 2000, a week after attempting a similar act with his children in the car. Members of the House of Representatives pretended that Wilton suffered from “Mental Illness”. Not true. He was acting out of his situation regarding family law. Several condolence motions were passed through parliament from political allies such as Anna Burke and from Opposition MPs such as Kay Hull. An entire parliamentary day was set aside for condolence speeches. Members of Parliament wept openly in the House chamber as they spoke of their memories of Greg Wilton and their grief about his death. (But then they did nothing).
The Australian Newspaper featured an article on 16 August 2019 calling for a review of killings in the family law system. To date this has not occurred. The Family Court after over 40 years of operations seemingly does not have a death review process. By contrast State based Child Protection Department have had such processes for decades ( Child Safety Practice Manual. 10.19 Systems and Practice Reviews following the Serious Physical Injury or Death of a Child : To examine practice and avoid future mistakes ), not so the “helping court”.
One of the many murder suicides that took place was in 1990 in Canberra. Darryl Gallagher slew his family, Judith Gallagher 31, Jaemi Gallagher 8 and Kari Gallagher 2 then himself. He was employed by PM Hawke’s Prime Minister’s Department as a Journalist. The silence and crocodile tears again abounded, so too did the term “Mental Health”.
Sarina Q Police Officer. During the 1990s a Serving Queensland Police Officer suicided at Sarina Q. Such was the nature of his suicide, attending Emergency Services personnel had to be counselled after the event for extreme trauma. A short news story on Regional Television was the only public notification of the event.
Rockhampton Railway Worker. During the 1990s a Rail Worker at Rockhampton was so distraught at the treatment he was subjected to by the family court and the CSA that he fashioned a long metallic rod and ran into the overhead electrified rail area of the rail yard thus electrocuting himself. He survived. The event was horrific and the injury serious, co-workers who witnessed the event were deeply traumatised. There was no media coverage of this event.
Peter Shoobridge. Tasmania. June 1997. A horrendous Murder Suicide, now almost completely forgotten. This family law case ended with the killing of Shoobridge and his daughters. Shoobridge was “estranged’ from his Hobart Lawyer wife, Wendy but according to the Australian ( 1 July 1997 ) she had “allowed” the girls to spend weekends regularly with their father. Again “mental health” was pulled out of the bottom drawer that the plausible reason for the outrage. Family court stayed well and truly below the radar, complements of the gutless media, gutless professions and gutless politicians.
It may be difficult to quantify the numbers and the names of those, victims of the court by vicarious responsibility but not impossible. It is not within the scope of this writer to do so, but perhaps maybe someone in the Parliament or the Professions could initiate a project to finally do so. Quantify the Butcher’s Bill that is. So far there is no interest. The list of names would surpass the numbers of all our war dead for all conflicts excluding the Great War of 1914-1918.
The Family Court, more accurately its Judges and Employees are exempt from Civil actions. They are not exempt from Criminal charges though. We have seen in just over a generation Civil actions against corporations and institutions that wilfully continue to harm members of the public. Asbestos manufacturers, Tabaco Giants, Ford for the Pinto and the Chelmsford Hospital to name but a few.
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The Case of the Ford Pinto is one that holds some precedents for the Family Court in that :
During the 1970’s the Ford Pinto was the subject of controversy regarding its safety and the incidents of fires from low speed rear end collisions. The Pinto was the subject of a number of law suits and damages were awarded. The Ford Motor Company was charged with criminal offences in the State of Indiana, charges that were ultimately unsuccessful and at one stage the Pinto was voluntarily recalled by Ford.
Any observation of the Ford Pinto case will reveal that there are public institutions that are used in dealing with matters that are suspected of harbouring harm to members of the public. Media exposure, professional bodies and standards, consumer law, and the courts of law themselves (unfortunately not in the Australian Family Court example though ), all played a part in the unfolding concerns surrounding the Ford Pinto. The purpose of this post is not to comment of the ultimate question of the safety or not of the Pinto. It is to examine the factors at play when concerns regarding Human Deaths and Injury arise as the result of the actions or provisions of some organisations, product or services that are offered to the general public.
The Pinto case/s and issues were determined over a period of time. One of the main concerns (obviously) were the deaths and serious injuries of members of the motoring public. Anyone could buy a Pinto, anyone could become involved in an accident and anyone could be killed or injured, therefor it followed that the public had an interest in the safety of the Pinto. (anyone could become a party to the family court )?
“Despite the constitutional prohibition on incarceration for debt, a father can be jailed without trial for failure to pay not only child support but also the fees of lawyers and psychotherapists he has not hired. A father forcibly separated from his son for three years now faces jail in Virginia if he cannot pay the equivalent of two years salary to a lawyer he never hired, for a divorce he never requested. The judge has summoned a legally unimpeachable citizen and ordered him to write a check or go to jail. And the weapon he is using is a child”. (Dr Stephen Baskerville, Testimony to the Canadian Senate, March 10, 2003 )
Mining Industry Deaths.
With the increase of deaths of workers on Queensland Mine Sites, there have been calls suggesting that CEOs and Managers of Mines be charged with Criminal offences related to negligence causing death ( Industrial Manslaughter ). In such cases the Managers involved may not have been present at the incident causing death but have a Vicarious liability. Queensland Mines Minister commented, "I can assure you these deaths in our mining industry are unacceptable under any standard and this government is doing all that we can to make sure that we have no further mine fatalities," Minister for Natural Resources, Mines and Energy Anthony Lynham said. Under the legislation, mine bosses could face up to 20 years in jail, while companies could cop multi-million-dollar fines if they're found to have been negligent in a workplace death. Apply this to the family court. (ABC News.19 November 2019).
Australian Defence Forces.
In 2008 the federal government made ex-gratia payments to the families of four young soldiers who killed themselves after being mistreated in the army. The issue has been a long and sad saga, Defence Minister Joel Fitzgibbon says. "The families are entitled to feel that the death of their sons was partly caused by shortcomings in the defence force system," Mr Fitzgibbon told ABC Radio today.
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"They are, of course, entitled to feel also that the after events weren't handled all that well in some cases."
Mr Fitzgibbon said compensation sums were confidential.
"Importantly, we like to think that they at least partly compensate the families for the pain and emotional suffering they have gone through in recent years," he said. "Of course, no amount of money can ever be enough to replace the loss of a son, but I hope it does assist and I hope now that the families can have closure and move on with their lives."
Mr Fitzgibbon said there had been substantial reforms to the military justice system.
There had also been moves to change the defence force culture in recent years. “But we must always continue to work on that point," he said ( Sydney Morning Herald. 23 October 2008 ).
The “Mental Health” Fallacy.
Clinical Psychologist and Equality advocate Bettina Arndt recently took Prime Minister Scott Morrison to task on his misrepresentation of one of the significant issues in the family law jurisdiction, the suicide of Men. Morrison stated that “80 percent of people who die by suicide have a Mental Health problem”. Arndt responded in an article in the Financial Review ( 10 July 2019 ), “No Prime Minister…that is simply not true”. Morrison had targeted “veterans, farmers and young people” as the high risk groups. Arndt further states that findings of the Australian Institute of Suicide Research shows that the majority if men who suicide “were not predominantly associated with a mental health prognosis”. Rather, there is “solid evidence” that the major cause of suicide for men….in this country is the toll taken by family break up”.
Compounding this very serious issue is one ABC report (22 July 2019 ) on the Victorian Royal Commission into Mental Health highlights indicating that, “Every suicide death destroys 135 lives with 'ripple effect” ( Suicide is not a “victimless crime”). Such is the destruction of this highly preventable consequence on our society. A number of inquiries into family law has thus far failed to address the suicides within that jurisdiction, in fact the response to a question in the senate as far back as 1989 ( above ), demonstrates that suicides in the family court are not counted or tallied in any way. They simply do not wish to know.
Chelmsford Royal Commission (1988-1990) into the Deep Sleep Therapy of Dr Bailey in NSW. This Royal Commission was conducted by the outrage of sections of the media, the Parliament and some connected professions after 19 suicides over 10 years, under Dr Bailey’s program. The Royal Commission findings in relation to the actions of Dr Bailey was seen as systemic failure by practitioners and some government bodies. The Sydney Morning Herald reported “ The Royal Commission into Mental Health Services would expose the current bureaucracy and medical profession to scrutiny. It might "sheet home to doctors, public servants and the various medical boards the consequences of what at worst has been a cover-up, and at best has been an exercise in negligence and incompetence”.
Whilst there have been moves to address suicides and deaths by “criminal negligence” in other industries and institutions, the family court stands alone in avoiding any responsibility for the mass suicides of men under its orders or jurisdiction. To date it seemingly ( after 44 years of operations ) doesn’t even have a death review process. The ADF, an organisation that trains people to kill, is sensitive enough to review, accept at least compensatory responsibility, but the helping court? Nil Result, and they don’t even count the dead.
These examples have implications for our Family Court and the Committee may take so time to examine these developments more closely.
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Of Course, His and her honours have seemingly not been able to identify and therefore accept the consequences of their collective efforts resulting in men’s mass suicide for over 44 years in their compulsory, monopolistic jurisdiction. This is not an element of judicial independence, it is a function of judicial irresponsibility and judicial indifference. These Tin Gods operating in Cardboard Castles hide their dubious characters and their heinous outcomes behind the shadow of outdated guild like conventions and the Stalinist section 121 of the odious family law act and they remain forever unaccountable for their deadly results. They continue unchecked, unrepentant and unchallenged by Parliamentary bodies as well as the media and the professions for their ongoing moral turpitude, which in the eyes of many are criminal acts and they can only be regarded as such by many.
Mass Suicide of Australian men and fathers. The Tin Gods, the elite brains trust, cream of the legal profession elevated to positions of tyrannical like power as sole arbiters have not been able over 4 decades to recognise the resultant suicides of tens of thousands of men who have appeared before the family court and been subjected to its orders. They have not been able to connect the dots, they have avoided the issue and continued on their way unabated. They show no insight and the accept no responsibility.
A clear indicator of the contempt held for men under family law and the child support agency is the statement made by the then Minister for Human Services, Joe Hockey on National Network television in 2006, when he poker faced told the audience that he would “pursue no paying men ( CSA ) to their graves”. Seemingly as Minister Hockey was not aware of the inappropriateness of this statement amid the mass suicide evident in both jurisdictions. Could we perhaps have an Indigenous Affairs Minister advocating the “pursuing to the grave” of the Departmental client base? Perhaps the Minister advising the Prime Minister on the Status of Women advocating the “pursuit of female client base to their graves”. Perhaps not. But Hockey said it, and to the everlasting shame of the journalist present, the professions and the other members of the Australian Parliament, Hockey’s comment went completely unchallenged.
Australia cannot afford to continue with this failed system. The Blood is too thick, the Deaths too Many and the Avoidance too Sickening.
“What did you do during the gender wars Dad? Well Son…I played Darts and Went to the Footy”.
REFORMING THE FAMILY COURT BY CIVIL AND COMMUNITY ACTION.
Family law reformers are faced with double jeopardy in dealing with protesting government policy in family law. Unlike those who lobby for political change in other areas, for example industrial relations and immigration, lobbyist can attack the laws and policies as well as the governing institutions as fair play in reform measures, like the Industrial Affairs Dept and the Immigration Dept without fear of criminal prosecution for merely mounting an argument. In the family law area, lobbying against the Act itself and various parliamentarians and the houses of parliament is permissible and often engaged in.
But to detail the cases where injustices have occurred is in breach of Section 121 of the Act and punishable by criminal charges and jail. Attacks on decision makers ( unlike other areas of government ) can and have resulted in charges of contempt of court. Past lobbying such as the Patricks Stevedoring company and even the Vietnam Moratorium protests were not overshadowed by the threat of arrest for merely defining the nature of the failings of the system and the objects of protest, especially under ill defined, obscure and esoteric subsections of Section 121, which despite the harshness of the penalties provided, leave even the most aware individual guessing.
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The original designers of the court, Murphy and Whitlam, would have been at the very least intelligent enough to realise the consequences of Section 121 which makes even reasonable social and political reform of the Act and therefore the court, virtually impossible. Individuals and the media are warned off from exposing any detail of the proceedings or the parties involved and therefore are denied any of the conditions for protest ( see Appendix 2 ). Despite the number of inquiries and reviews of the Act and the court over the decades since its inception, there has never been a truly independent body to conduct an inquiry, the recent ALRC Inquiry being no exception, consequently no meaningful lasting reform has been achieved. If you can’t present the detail, you can’t argue a position.
Secrecy allows zealots to go beyond normal human boundaries, especially when the media fails to keep the world informed. ( Brian Toohey, “Secret : The Making of Australia’s Security State”….Melb University Press, 2019 P 46 ) MEN AT A DISADVANTAGE
Decades of neglect of Men’s needs by all tiers of Government have resulted in a near disenfranchisement of men in Australian Society. Even the submissions to this enquiry will be inundated by funded feminist and women’s organisations. Submissions from Funded Men’s Organisations will be a rarity. Men are not located in Government funded gender specific units, supported by administration assistants housed in open plan offices, well-resourced with Information Technology, research assistants, travel and an operations budget. Men will struggle to have influence. Men don’t have Government Departments dedicated to their wellbeing, they don’t have specific University Degrees dedicated to their wellbeing, they don’t have Men’s Health Services dedicated to their wellbeing, they don’t have Men’s Shelters dedicated to their wellbeing, they don’t have Men’s Legal Services dedicated to their wellbeing, they don’t have a Jet Scheme to fast track them back into the workforce or studies, there is no equivalent EMILY List for men ( partially because of the gutlessness of men in the Parliament, past and present ), there are few or no gender specific support services for male victims of domestic violence either in the court precinct or in the community. Men work longer, die sooner from natural causes and in workplace accidents or foreign battlefields and utilise health services less. They are ignored as an entity by Parliament and only called upon by society when dangerous dirty work is needed to be carried out or when cannon fodder is required in war.
“While mothers also fall afoul of family court judges, it is fathers against whom their enmity is largely directed, because fathers are their principal rivals. The judge’s contempt for both fathers and constitutional rights was openly expressed by New Jersey municipal court judge Richard Russell. Speaking to his colleagues during a training seminar in 1994, he said:
"Your job is not to become concerned about the constitutional rights of the man that you're violating. Throw him out on the street, give him the clothes on his back and tell him, See ya around. . . .We don't have to worry about their rights. " ( Baskerville op-cit )
Men and their children are the ongoing and ultimate losers in the “mistake” family court. Whilst the court itself and repeatedly stated over the decades that it only makes full orders in 5% of the cases that come before it the rest are “consent” orders i.e. “acquiescence” orders ( let’s not forget it is a monopoly-people can get married anywhere but when it comes to divorce there is only one game in town- and God help us if the court ever has to deal with 100% to full orders- it struggles and spreads its incompetence with the 5% ) and 40% of fathers gain custody ( This delusion fades away when the data from the child support agency clearly show that Men are payers in over 85% of cases. So much for the 40% ….. 40% of 5% that is ).
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Like its creator Murphy, the family court continues to deceive itself into thinking it sets some kind of standard and that it serves a vital part in the administration of justice and in positively assisting individuals and the community at large. Like Murphy, it doesn’t’ and like Murphy it is little more than a duplicitous con job. The family court obviously can’t rectify or correct itself given the amount of denial that envelopes it, consequently the Parliament needs to recognise, and Right Past Wrongs admit the responsibility for, and Repair the Damage. There needs to be a Transitional Body, made up predominately of Family Law reformist from the Community, excluding those who have sat by in silence while the “mistake” court went on its way unimpeded, no lawyers, no retired judges, no ex parliamentarians, no feminist ideologs, no residual funded services from the current crop of failures but a body selected for their moderate outlooks and achievement in human services delivery in a non-adversarial organisation. Leadership needs to be a person, perhaps with the drive of Murphy, but with ethics. A significant part of the Transition will need to be a South African Style “Truth, Reconciliation and Compensation Commission”. Sarah Derrington of the ALFC has indicated a dismantling of the family court to be replaced by reverting to existing state magistrate and higher courts. For many, a mere change of jurisdiction will unfortunately, only mean business as usual. Whilst our divorce courts operate under a rigid veil of secrecy (Section 121 of the Family Law Act ) and in an adversarial manner, it will no doubt continue to Fail. Radical change is needed not just more trimming around the edges. A court of public record would be a good future starting point.
The ABC Broadcasting Organisation has lost reason to exist. In the days that it was conceived there was plausible argument for a non-commercial media outlet, best served by a Government initiative, the ABC. Since the expansion of digital and internet services the need for the ABC to continue as a Government institution funded by taxpayers is past. The savings of at least 1 Billion Dollars annually to run the ABC and the selling off of physical assets would mean that nearly 2 Billion Dollars of Tax Dollars could be redirected to a support a new approach to Divorce and Matrimonial Causes in Australia. We can only benefit from such actions.
If the family court model of accountability for damage and harm ( i.e. Deaths/Suicide ) was applied to industry, Thalidomide would still be prescribed, DDT would still be sprayed, the Ford Pinto would not have been withdrawn from sale, Chelmsford Hospital would still be in operation, Boeing’s 737 Max would still be in the air, Tabaco would be freely sold without warning, Agent Orange would be available in Hardware stores, Asbestos would dominate in the building industry over Gyprock, Air Bags in Automobiles would not have been recalled. “Consumerism” has triumphed over these deadly products, consumerism that is nigh impossible in the family court because of the insidious Section 121. Ralph Nader didn’t say it, but with apologies to him, The Family Court is Unsafe and Any Speed. The family court is the modern age’s Silent Spring.
Despite the founder’s intent that shared parenting be the norm for the so-called “helping” court aka The Family Court of Australia, and subsequent legislative attempts to impose shared parenting post separation as the most civilised outcome for separating couples, such was never to be. The Family Court rapidly became a law unto itself, imposing sole mother custody on separating families, despite all the documented harm of this style of custody order, denying fathers contact with their children on the flimsiest of excuses. Overly legalistic, enormously bureaucratic, secretive and unaccountable, defying public norms of decency and probity, it soon became one of the country’s most hated institutions. To this day it has remained remarkable resistant to reform and indifferent to the public odium it attracts. Successive governments from both left and right have failed to listen to their constituents and respond to their concerns. They have resorted to vested inquiries in the hands of the mandarins and publicly funded elites whose feigned attempts to listen to the views of ordinary people have then been heavily reinterpreted. They have delayed progress through the extensive manipulation of committees or other forms of alleged inquiry. These same governments, even when they were enacting legislative reforms, left their enforcement in the hands of institutions notoriously resistant to change. They allowed or encouraged fashionable ideology, institutional inertia and bureaucracy to triumph over common sense. Common decency was lost long ago. “In terms of human suffering, the Australian public has already paid dearly for the failure to reform outdated, badly administered and inappropriate institutions dealing with family law and child support – and for the failure of governments to take seriously the experiences and voices of the men and women most directly 41
affected by them. The country’s failure to reform family law and child support is ultimately a failure of democracy itself.” (Chaos At The Crossroads, John Stapleton).
With apologies to Peter Hitchens : We could calve a better family court out of a Banana than he one we currently have.
THE WAY FORWARD.
1. Immediate disbandment of the existing family court. 2. Immediate Apology to Victims of the family court over the past 4 + Decades from the Prime Minister. 3. Initial action to set up a Truth, Reconciliation and Compensation Commission to Right Past Wrongs of this court. 4. The abandonment of any adversarial system to deal with Divorce, Custody, Property Settlement, Child and Spousal Maintenance. 5. Dismantling of Legal Aid for family court matters as part of a transitory measure. 6. A Transitional Body to be appointed from Community Leaders of Family Law Reform. To exclude all past operatives of the court, including judges, ex judges, lawyers, politicians and ex politicians, individuals who were operatives of funded family court support services ( Relationships Aust and like organisations ) and funded feminist organisations. 7. That the family law legislation disallows anything other than state based legislation to apply in relation to child protection and domestic violence. The law family law being restricted to deal only with Divorce and non-adversarial applications. Criminal Matters to be dealt with in courts of Record. 8. A New model for Divorce and Matrimonial Causes, based on a non-adversarial engagement and mediation model with the concepts of joint custody, 50-50 property split, an asset and property register compiled at the beginning of the marriage. Eliminating child support for the most. The development of government, non-community based statutory units staffed with an equal number of equally qualified and accountable, men and women who are to carry out their duties in a culture of cooperation, respect, unconditional positive regard and at the same time being totally focused on best outcomes. The need is for a non-adversarial process devoid of judges and lawyers, pursuing outcomes based on fair legislation negotiated in a calm and supportive environment. Those parties who don’t wish to avail themselves of the non-adversarial system will have the option go to a court of record and put their case to a jury, with the element of fault introduced. Such courts to be state based and funded from savings in family court abolition, legal aid savings and ABC defunding. 9. That a Library Based Archive be established to record the disastrous events since the inception of the family court which caused grievance and actual harm to individuals. A register of Deaths and Suicides be compiled for public reference and access. That a Monument to the Dead be erected adjacent to the Entrance of Federal Parliament as a Reminder to those who conduct business there, as to the consequences of secret courts and monopiles acting without accountability.
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10. Clergy and Marriage Officiators to be required to deliver an interim “Product Warning” to those couples wishing to Marry. This would include the likely outcome for both parties based in the current family court model regarding Child Custody, Property Settlement, Child Maintenance/CSA, Denial of Access and the current lack of Legislative protection for the institution of Marriage. Delays in Family Court Justice, Cost of Court/Cost Awarded, and Spousal Maintenance. Such Warnings to be based on current practice and outcomes and modified accordingly to suit the proposed new non-adversarial model when adopted. 11. That all positive reference to Lionel Murphy be expunged from Australian public record and venues. That his scholarship be disbanded, and any public event associated with his name be discontinued and any building having reference to him or his name be renamed with some of the victims of his court and his costly and failed legislation.
Cameron Smyth has extensive experience in the field of child protection and youth justice. He has worked as a caseworker, team leader, special project worker, resource officer, senior resource officer, manager and senior practitioner in these fields. He has worked as a Teacher in Certificate Level Welfare Subjects as well as a Tutor in Communications Subjects at Tertiary Level. He has been a Youth Development Officer with the QLD State Emergency Services, as well as a Rehabilitation Counsellor with the QLD Worker’s Compensation Board. Whilst he has extensive experience in court work involving civil matters for child protection and criminal matters of youth justice, he is proud not to be legally qualified and proud that he is not a member of the “legal profession”. He also takes pride in the fact that he is not working in association in any way with the “legal profession”.
Cameron Smyth
17 December 2019
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Appendix 2
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