THE SENATE PROOF ADJOURNMENT Access to Justice

Madigan Family Court

SPEECH

Tuesday, 25 March 2014

BY AUTHORITY OF THE SENATE

Tuesday, 25 March 2014 THE SENATE 100

CHAMBER

SPEECH

Date Tuesday, 25 March 2014 Source Senate

Page 100 Proof Yes

Questioner Responder

Speaker Madigan, Sen John Question No.

Senator MADIGAN (Victoria) (22:34): I rise tonight

to speak about what a barrister has described to me as

the all but complete denial of access to the courts for

ordinary people due to the severe and extreme cost of

litigation. This barrister, an experienced and objective

advocate in criminal and commercial matters, despairs

at the legal injustices that go unaddressed. He despairs

at the ongoing harm caused by a legal culture that has

priced access to the courts completely out of the reach

of ordinary Australians. The gravy train legal culture

that prevails is most dangerous when it impacts the

weakest and most vulnerable in our society. Our legal

practitioners, this barrister said, have increasingly lost

their identity as officers of the court, with all of the

obligations that entails. They are, he said, preoccupied

with commercial advancement.

Representing people before a court is so time

consuming and demanding that ordinary people can

no longer afford it. Those who need the protection

of the law the most—the poor and alienated—have

no hope of getting the considered and experienced

representation they desperately need. Ironically, and

all too frequently, litigation causes financial ruination

to the parties and creates problems which dwarf the

original dispute. The long-term harm and distress

persist long after the legal issue is resolved or

abandoned for want of resources.

Last week saw a case in point. On Wednesday I

excused myself from this place to attend the Federal

Court in Melbourne in support of a constituent.

Appearing before the court was a farmer from western

Victoria, someone I have known for many years.

His farm was bankrupted by his own law firm. This

firm had represented this individual in a family farm

partnership dispute that began in 2005. Anyone who

has worked on the land would not be unfamiliar with

the concept of a family farm partnership dispute.

Farm partnerships and farm succession planning are an

inevitable part of almost any rural operation. But in this

case the farmer in question—I will call him Murray—

has had his life destroyed by the legal firm he appointed

to protect his interests.

According to his affidavit, Murray obtained a projected

legal cost in 2005 from law firm Russell Kennedy

of approximately $30,000. He was further advised

in 2007—when the costs were already $83,990,

according to the affidavit—that the proceedings might

cost a further $100,000, including disbursements. At

the time, according to documents presented in the

court, part of Murray’s costs would be recovered—

Russell Kennedy told him. But, by the conclusion of

the matter, Murray’s fees from Russell Kennedy were

in excess of $380,000. I repeat: an initial estimation of

costs to Murray by Russell Kennedy of $30,000 had

grown to $380,000.

But that is not all. A key part of Murray’s action in

this partnership dispute was a diary. In this diary was a

record of an agreement between Murray and his father.

And this diary was lost by Russell Kennedy some

time in 2008, according to documentation attached to

Murray’s affidavit. In an earlier court action, it was

ruled the discovery of the original diary should be

made. This is stated in a letter dated 1 September 2008,

and written by Russell Kennedy principal Michael

Main. In that same letter, Mr Main said: ‘We will

continue our search for the diary, and would be grateful

if you could also check to ensure that it is still not

in your possession or has been returned to you by

mistake.’ That is right: Murray’s own law firm, it

appears, lost a crucial piece of evidence.

On the website of Russell Kennedy it says the

firm is committed to making a difference to their

clients. Certainly, Murray’s involvement with Russell

Kennedy has made a difference in his life. Because

of their incompetence, because of their extraordinary

poker-machine-style fee-accrual system and because

of their sheer legal bloody-mindedness, Russell

Kennedy decided to bankrupt a sole individual farmer.

Murray’s prospects of financial recovery, of rebuilding

his life, have been severely threatened by this action.

And how much money did Russell Kennedy get back

against their $380,000 bill? Not a cent. Murray was

already virtually destitute. It was an action based on the

strict confines of the law, as futile it was vicious. And,

while Russell Kennedy’s action may have been legal,

was it appropriate? Was it fair? Was it ethical?

Needless to say, it was the same Mr Main who appeared

at court last week in his firm’s proceedings against

my constituent. The Federal Court is, of course, only

one platform in our legal industry. There is the High

Court, the Supreme Court, the County Court and the

Magistrate’s Court. It is a labyrinth, with top lawyers

commanding fees of $10,000 a day or higher for their

Tuesday, 25 March 2014 THE SENATE 101

CHAMBER

services. According to research by Ibis, legal services

in Australia are a $21 billion industry, employing

nearly 100,000 people. It is a gravy train with many,

many carriages.

But for the moment I would like to drill down into

one aspect of this labyrinth, the Family Court. In many

ways, this is both the most important and the most

divisive part of our legal system. I say that because it

goes to the heart of Australian society—our families

and our children. The current state of the Family Court

points to a tragic legacy left behind by the previous

The Family Law Legislation Amendment (Family

Violence and Other Measures) Act 2011 was passed

by the Senate and came into effect in 2012. This

legislation changed the Howard government’s shared

parenting reforms via a spurious claim to provide

greater protection for children from family violence.

The objective was to improve the Family Court’s

decision making by giving priority to a child’s safety

when determining what is in their best interests. The

aim was also to make it easier for allegations of family

violence and sexual abuse to be brought before the

court. And was this successful?

Last year a retiring Family Court judge gave his view,

which was reported in the Fairfax press. Justice David

Collier had 14 years on the bench. And, keep in mind, it

is rare for Family Court judges to speak publicly about

their views. Many of us would recall the 1980 murder

of Justice David Opas and the 1984 bombings of the

Parramatta Family Court building and the homes of

two judges. The Family Court is the flashpoint for the

breakdown in family life. It is a place of heat and anger

and stress. It is a place where lives collapse and are

changed forever.

Justice Collier gives us clear insight into what is

currently forging this tragic metallurgy of Australian

families in crisis. He said unprecedented hostility

was infiltrating the Family Court, with a willingness

by parents to use their children to damage one

another. ‘Allegations of child sexual abuse are being

increasingly invented by mothers to stop fathers from

seeing their children’, Justice Collier said. I quote from

Justice Collier: ‘

When you have heard the evidence, you realise that this

is a person who’s so determined to win that he or she

will say anything. I’m satisfied that a number of people

who have appeared before me have known that it is one

of the ways of completely shutting husbands out of the

child’s life.

Justice Collier called this ‘a horrible weapon’.

The continued use of false claims is undoubtedly

fuelling the crisis of our Family Court system. Member

for Dawson George Christensen has been a strong

campaigner against our unfair family law and child

support systems

He referred to the Gillard government amendment as

a Trojan horse, loaded with consequences that would

undermine some of the most basic human rights of

children and parents, particularly fathers. This reform

to the act provided for two primary concerns for

the Family Court to consider when making parenting

orders. The first concern was the benefit to the

child of having a meaningful relationship with both

of their parents. The second concern was the need

to protect children from harm and abuse. On the

surface, both of these seem valid. However, the Gillard

government’s amended act clarified the second primary

consideration of violence over the shared parenting

provisions. Where there is a conflict between these

two primary considerations, the act now requires the

courts to give more priority to the protection of children

from harm and abuse. Is that a good idea? Of course

it is in principle. But this amendment has allowed

the introduction of many false allegations in the

court. According to many Family Court practitioners

—the judges, the clerks, the barristers and others—the

system is on the brink of collapse.

The Chief Justice of the Family Court of Australia told

ABC radio earlier this month that cuts to legal aid have

led to more and more people representing themselves.

Chief Justice Diana Bryant said that the Family Court

system was unquestionably compromised. She said

that the Family Court produces decisions that do not

stick and then you have people who are unhappy with

decisions or who take matters into their own hands.

Chief Justice Bryant said:

… there are mental health issues and the court needs

to know about those issues and to know the extent of

them, and you don’t have parties with the capacity to

bring the right evidence, then you are certainly putting

children at risk.

Aiding this breakdown of the Family Court system

was the repeal of the sections—including 60CC(3)(c)

—that were known as the friendly parent provisions.

This meant the court is no longer required to consider

the willingness and ability of a parent to facilitate a

relationship with the other parent in determining the

best interests of the child. Reforms by the Howard

government were designed to get away from the

adversarial system and allow a court to consider giving

custody to the parent who was most likely to include

the other parent in the child’s right to have a meaningful

relationship with both parents.

Tuesday, 25 March 2014 THE SENATE 102

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Additional consideration under the aforementioned

section also requires the court to consider the extent

to which each parent has fulfilled or failed to fulfil his

or her obligations to maintain the child. This includes

the extent to which the father or mother has taken

the opportunity to participate in decision making in

relation to the child, as well as spending time with

and communicating with the child. As divorce is no

fault, the reasons for failing in this area are seldom

considered, so parental alienation becomes a successful

tactic. One parent presents an accusation against the

other parent for failing to be involved. Excluding the

other parent becomes the grounds to further eject the

alienated parent.

Additionally, hearsay evidence of children is now

allowed in Family Court proceedings. The provisions

of the Evidence Act 1995 do not apply to childrelated

proceedings. The Gillard government repealed

the section which allowed the courts to order costs

against a party who has been found to have knowingly

made false allegations or statements before the court.

This means any accusations can be made in a Family

Court hearing with impunity. Frequently, we hear

unsupported accusations of abhorrent behaviour by

one parent. As I said earlier, Justice Collier called

this ‘a horrible weapon’. Lastly, we operate under a

new definition of family violence. This means family

violence now means just about anything. So it is open

slather; there are claims, counter-claims and a veritable

river of unsubstantiated accusations in Family Court

A survey of 68 New South Wales magistrates

concerning apprehended violence orders—AVOs—

found that 90 per cent agreed that some AVOs were

sought as a tactic to aid a person’s case in order to

deprive a former partner of contact with their children.

About a third of those who thought AVOs were used

tactically indicated that it did not occur often, but one

in six believed it occurred all the time. A similar survey

of 38 Queensland magistrates found that 74 per cent

agreed with the proposition that protection orders are

used in Family Court proceedings as a tactic to aid a

parent’s case and to deprive their partner of contact with

their children.

It is time to ask ourselves if we are falling short of

the ideal professed under the international Convention

on the Rights of the Child. Included in this are the

child’s right not to be separated from his or her

parents against the child’s will, the child’s right to

maintain contact with both parents if they separate,

the child’s right to be heard in any judicial and

administrative proceedings, and the child’s right to

freedom of expression. Lastly, the convention provides

that parents or legal guardians have the primary

responsibility for the child’s upbringing.

As the member for Dawson said earlier this month,

family law and child support are messy areas and there

are no winners. But under the current system some

of the losers are being turned into massive losers.

That is even to the extent of losing their children and

their lives. The current system is blatantly unfair and

negligent. It is biased against fathers. It is unfair to

children, who are the most vulnerable members of our

communities. It must be fixed, as a matter of urgency.

Senate adjourned at 22 : 51

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