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Disorder in the courts

Sunday Telegraph (Sydney) 9 July 2000

The Family Court has consistently pursued its critics by instigating contempt charges. But lately these citizens have been beating their powerful foe. Sarah Harris reports.

(Pix: View of a back of a man seated on park bench looking at children's playground equipment.)
Caption: No picnic: This man, whose name cannot be revealed, has endured much financial and emotional pain through dealings with the Family Court.

We can't show you his face or tell you his real name. Yet, ironically, he recently won a major victory for free speech.

The man's win came when a charge of "contempt" by scandalising the Family Court was dismissed and a judgment for costs made against its marshal.

His alleged crime was to stand on the footpath outside the court handing our leaflets and hollering through a megaphone his protest about the court's handling of his children's custody arrangements.

As one of a group dubbed the "Family Court Four" he faced an unlimited fine or jail term under arcane 18th century law.

Now, as the losers in this extraordinary case of several "Davids" versus the Family Court "Goliath", the Family Court faces a legal bill estimated to be upwards of $100,000.

Admittedly, this is small change against the court's $122  million 1999-2000 funding.

However, it would buy some much needed legal aid for the increasing number of litigants without lawyers.

Family Court Chief Justice Alastair Nicholson has previously raised grave concerns about the impact of Legal Aid cutbacks.

Research commissioned by the Family Court, shows that between 35 to 40 per cent of all cases involve at least one unrepresented litigant.

Of those, 60 per cent were disadvantaged by lack of legal representation, according to the assessment of judges and court staff. "By not spending money on legal aid, we may be killing people," Justice Nicholson told a legal forum last year.

"There is a serious problem in family law involving violence between the parties.

If you increase the frustration and parties don't have the benefit of legal advice you increase th chance of violence being perpetrated."

For a senior officer of the court to then criminally charge these very same frustrated and disadvantaged parties - who, left with little other avenue, took to the streets in protest - seems a somewhat inflammatory response.

Suspicion rules in the Family Court

Ultimately, the bills incurred by the court in retaining not one, but (initially) two, senior silks to prosecute charges of "scandalising the court" will be picked up by the taxpayer.

It is the second such case the Family Court has lost this year.

In March, a man who spent two years stridently voicing his frustrations at being denied contact with his two children outside the Family Court building in Melbourne had contempt charges  against him thrown out.

Last week, the Family Court sought to file a notice of discontinuance of charges against a third man.

The tactical withdrawal is unlikely to prevent a further order of costs against the court and may yet even result in damages being paid to the defendants.

To Gabriel Kuek - whose firm represented the first three of the four defendants either privately or under limited legal aid the issue is clear-cut.

"As we have said again and again, Australia is a free, democratic society which ought to be able to withstand robust debate and criticism by people against the arms of government," Mr Kuek said. "The Family Court is part of the judiciary which, under the Westminster system, is one of the arms of government."

As an institution, the Family court of Australia can arguably be forgiven for being somewhat thin-skinned.

One judge was shot dead and the wife of another killed in a bomb explosion in the 1980s.

These tragic incidents show the court and its officers face real risk as they negotiate the minefield of other people's property and custody disputes.

What is disturbing, however, is the court's apparent sensitivity to criticism of any kind.

Justice Nicholson has previously sought to categorise the courts most vocal critics as dysfunctional misogynists who regard women and children as objects who have no rights.

"The most strident critics of the court emanate from groups of men who regard themselves as having been badly treated by the  family court system," he told a national conference in 1998.

"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.

"Many demonstrate in strident terms outside the court. Some even stand for Parliament, with signal lack of success."

Notwithstanding the fact that the assessment of some of these people may well be accurate, political representatives like Federal Labour MP Roger Price, wonder if it is entirely just to paint them all as mad, bad and dangerous.

"Is it impossible, for example to conceive that some of them may have been driven to extremes and wrongly penalised because of false accusation made by no less bitter partners?" Mr Price asks.

As Justice Nicholson himself pointed out in that same speech, there are two sides to every story.

Disgruntled clients are not the only targets of withering statements from the chief judicial officer of the family Court.

When the Australian Law Reform Commission unfavourably reviewed some aspects of the Family Court in its report Managing Justice: A Review of the Federal Civil Justice System, it was met head on with a press release.

"It is extremely disappointing that the Commission has chosen to include such gratuitous, ill-informed and wrong comments about a court whose task is perhaps the most sensitive and difficult in the country."

The release referred most disbelievingly to "alleged criticisms from legal practitioners".

But perhaps most paradoxically, the press release was scathing of "selective and gratuitous report of comment of anonymous persons cloaked in the guise of 'research'."

One impediment to debate about the merits or otherwise of the Family Court is legislation which prevents identification of any of the parties.

Under Section 121 of the Family Law Act, it is an offence to publish or disseminate anything which may identify or tend to identify any party to the proceedings in the court.

While this does not prevent the media giving voice to the experience of family court clients, it does severely restrict the press.

The only exemption to this is the Family Court of Australia which allows publication of cases complete with names on the Internet in the interests of the legal profession.

Unable to show identifying photographs, use names or even occupations means, however, mainstream media accounts are restricted to using these very same "anonymous persons" to whom the Chief Justice objects.

Anonymity protects all parties, particularly children, but Section 121 also shields people who make outrageous claims against others without the threat of defamation or the burden of proof required of other courts.

These disembodied accounts lack credibility - as the Chief Justice himself apparently believes - for the very reason they could be entirely fictitious as, indeed, are some of the allegations made in the Family Court.

Roger Price argues that suppression of reporting about the Family Court has given rise to suspicion and distrust about the institution itself.

The Labour backbencher has been something of a thorn in the side of the Family Court since 1995.

At that time, he was chair of a joint select committee investigating finance and administration of the court.

Undaunted by last month's derailing of a private member's bill which he had proposed to lift reporting constraints, Mr Price has vowed to continue his crusade to open up the court to greater public scrutiny.

"My proposals are not about tilting the Family Court in favour of men, or women or children," he said. "They are about accountability."

He has found a surprising ally in Ian McCall - the former Chief Justice of the Family Court of Western Australia.

Attorney-General Daryl Williams asked Mr McCall to re-examine section 121 after The Sunday Telegraph first revealed the Family Court had breached its own rules of publication by allowing judgments to be posted on the Internet.

Mr. McCall recommended the lifting of reporting restrictions in all cases except those involving parenting orders, welfare cases and child maintenance orders or where a judge decided to suppress specific information.

Mr. MCall found the stringent rules on reporting had a negative impact on the court.

The report quoted a number of judgments in which his judicial colleagues touched on the issue of the relationship between the law and the media and the public at large.

One judgment said, in part: "Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against probity.

"It keeps the judge himself, while trying, under trial."

In another example, media coverage was said to: "provide a safeguard against judicial arbitrariness or idiosyncrasy and maintain public confidence in the administration of justice."

The Attorney-General initially embraced the report, saying it gave what he describes as "compelling reasons" to drop the Family Court ban on naming people.

His views were echoed by others who believed it would counteract flourishing conspiracy theories about the court.

But, in the end, the Howard Government backed away from the reforms recommended in the McCall report.

After a considerable number of submissions from community and welfare groups the Federal Government decided in August 1999 not to amend section 121.

"It was felt on balance that the potential risks to children outweighed the benefits," a spokeswoman for Mr Williams said.

The issue is unlikely to go away but it is likely to be some time before any government visits it once more.

In the meantime, if more "Davids" are awarded costs against the Family Court, its press officer may only represent one side of the case - but at least we can tell you his name.

One father's tale of horror

"I couldn't even afford to take the kids to Macca's"

"Someone must write this story," the letter began.

What followed was an extraordinary tale of a man who, for years, has been charged to support three children - although he only had one.

After eight years of paying maintenance, John Jackson* discovered two of the three children he watched born during his four-year marriage were, in fact, fathered by other men.

The proof is in the lab tests which show "the exclusion of" Mr Jackson as father of his two youngest children "is considered 100 per cent.".

Other evidence suggests his ex-wife knew with certainty her middle child was fathered by another man and did not believe her husband was the father of the youngest child.

Mr Jackson says he was forced into having his children DNA tested because he was being bled dry. At one point, because of a Child Support Agency error, he was paying out $550 and left with $260 a fortnight to live on.

"I have never objected to paying maintenance, but it got to the stage where I just couldn't live," Mr Jackson said. "I still had the kids every second weekend and I couldn't even afford to take them to Macca's."

Unable to secure legal aid resources, he represented himself in the Family Court two weeks ago. He knew what he needed to say, but when he faced the full bench of wigs and gowns he became tongue-tied.

"What I really wanted to ask for was a refund," Mr Jackson told The Sunday Telegraph.

The judges dismissed his appeal against an earlier ruling that his ex-wife did not have to pay for the paternity tests.

Nor would the courts order her to reveal the names of the men who had slept with at the time of conception of two of the couple's three children.

"They just didn't care that this woman, my ex-wife, had deliberately defrauded me, the Child Support Agency and Centrelink and then used every trick in th book and the Family Court to try and prevent discovery," he said.

"I guess I'm lucky they didn't make me pay costs. She has used the system to crush me financially and emotionally and it's a rort.

"I tried to do the right thing by those kids and the courts and the system penalised me.

"The kids are saying" 'We still want you to be Dad.' It is heartbreaking.

I love those kids. In fact, I love them even more, because God knows if their real fathers ever will.

"But I have been driven too far. I made a decision not to see the kids back in December last year until this was resolved somehow or other."

Mr Jackson said the discovery that his two youngest children were the progeny of others was like a knife  in his heart after all he had been through on their behalf.

The stress of trying to rebuild his life while the Child Support Agency extracted three quarters of his wage forced the public servant off work last year and he remains on sick leave.

He has been diagnosed as suffering major depression and anxiety by three psychiatrists, and is on medication.

On top of this, the CSA now insists that, as of early this month he owes a further disputed $39,679.

*Names changed as the man cannot be identified under Family court laws.

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