“During the longest period of human history—so-called prehistorical times—the value or disvalue of an action was derived from its consequences: the action itself was considered as little as its origin, it was rather the way a distinction or disgrace still reaches back today from a child to its parents, in China, it was the retroactive force of success or failure that led men to think well or ill of an action… In the last ten thousand years, however, one has reached the point, step by step, in a few large regions on the earth, where it is no longer the consequences but the origin of an action that one allows to decide its value… one came to agree that the value of an action lay in the value of the intention. The intention as the whole origin and prehistory of an action: almost to the present day this prejudice dominated moral praise, blame, judgment, and philosophy on earth.— But today—shouldn’t we have reached the necessity of once more resolving on a reversal and fundamental shift in values, owing to another self-examination of man, another growth in profundity—do we not stand at the threshold of a period which should be designated negatively, to begin with, as extra-moral: today, is not the suspicion growing, at least among us immoralists, that the decisive value of an action lies precisely in what is unintentional in it, while everything about it that is intentional, everything about it that can be seen, known, “conscious,” still belongs to its surface and skin—which, like every skin, betrays something but conceals even more? In short, we believe that the intention is merely a sign and symptom that still requires interpretation, moreover, a sign that means too much and therefore, taken by itself alone, almost nothing—that morality in the traditional sense, the morality of intentions, was a prejudice, precipitate and perhaps provisional, something on the order of astrology and alchemy, but in any case something that must be overcome.”
― Friedrich Nietzsche, Beyond Good and Evil (1886)
“Law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time.”
― Friedrich A. Hayek, The Constitution of Liberty
Section 4AB of the Family Law Act 1975 provides that:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Section 4 of the Family Law Act 1975 provides that:
“family violence order” means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.
Section 102NA of the Family Law Act 1975 provides that:
(1) If, in proceedings under this Act:
(a) a party (the examining party) intends to cross-examine another party (the witness party); and
(b) there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii) a family violence order (other than an interim order) applies to both parties;
(iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv) the court makes an order that the requirements of subsection (2) are to apply to the cross-examination; then the requirements of subsection (2) apply to the cross-examination.
(2) Both of the following requirements apply to the cross-examination:
(a) the examining party must not cross-examine the witness party personally;
(b) the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i) the witness party; or
(ii) the examining party; or
(iii) if an independent children’s lawyer has been appointed for a child in relation to the proceedings–that lawyer.
This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
1. It gives perpetrators an unearned advantage
This means that instead of having to pay for legal representation, they can now get it for free and at taxpayers’ expense, no matter what their financial circumstances are.
And if the perpetrator was previously not legally represented, they now have the benefit of legal representation that they otherwise may not have obtained, and therefore their case will be presented far better than if they continued to self-represent.
Section 102NA of the Family Law Act 1975 was not intended to benefit perpetrators of family violence, but that is precisely what it does.
2. It also gives false accusers an unearned advantage
False allegations of family violence are a fact of life in family law.
Whenever an allegation of family violence is made, unless it is backed up by hard evidence or another court has made findings or imposed convictions, the accused party will usually deny the allegation. The allegations must then be determined at trial, where findings of fact can be made. Sometimes allegations are proven at trial, and sometimes they are found to be false.
Section 102NA of the Family Law Act 1975 means that the mere making of allegations of family violence may and does result in people who may not otherwise qualify for legal assistance now being entitled to it.
Many proceedings where a section 102NA order has been made have involved very minor allegations of family violence, or allegations which do not appear to be particularly plausible. The necessity or even the desirability of a Section 102NA Order in such cases is not clear, and in our experience it appears to be something that Judges have sometimes freely ordered because they would prefer not to deal with self-represented litigants.
3. It results in a waste of Court resources and undue delay
One of the unintended consequences of section 102NA is the deleterious impacts on case management and the allocation of court resources. A few cases will demonstrate this point.
In one case in Toowoomba we were involved in, the mother had completely failed to comply with the trial directions or secure legal representation through the cross-examination scheme. She had even failed to notify the Court that she had become self-represented, as required by the trial directions. When the parties turned up for the trial, the mother sought an adjournment because she was unrepresented and could not cross-examine the father in person. Judge Purdon-Sully granted the adjournment, despite our protestations. Our efforts to comply with the trial directions were all for nothing. Court time was wasted. The mother didn’t even suffer a costs order against her. It was a disaster effectively condoned by the Court.
In other cases, we have been appointed by Legal Aid to act for extremely unreasonable parties.
One insisted that we do not ever communicate with the lawyers for the other parties unless he was also a party to such conversations. That request was unreasonable, and we requested this party to sign an instruction sheet confirming that they would remain ‘on the record’ until shortly before the trial and at their own risk so we would not have to communicate with the opposing lawyers. The party refused to sign the instruction sheet. We notified Legal Aid that we could no longer assist this client. We doubt that any solicitor could deal with such an unreasonable and difficult client. But unless one does, the trial may not proceed.
Another paranoid party, who was subject to an application to have him declared a vexatious litigant, called our office and said that he did not trust solicitors and was looking for one that he could have confidence in. He asked to see us to decide whether he would engage our firm. We asked him to send through the Legal Aid paperwork to see if he was being permitted by Legal Aid to appoint his own solicitors as he claimed. Weeks later, we are yet to receive anything. One wonders if he ever will find a solicitor so that his hearing may proceed.
No matter how unreasonable parties are when s102NA applies, the trial ordinarily cannot proceed until and unless they are legally represented.
One can imagine a not uncommon scenario where a party forces their lawyers to withdraw at the commencement or mid-trial, and the trial therefore has to be aborted or adjourned because they need lawyers to cross-examine the other party.
Such undue prolongation of cases is contrary to modern principles of case management, which places great emphasis on the public interest: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (“Aon”) at [93].
In Aon, French CJ observed at [24] that:
“Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation”
As Judge Riethmuller recently observed in Lawson & Glenning [2021] FedCFamC2F 118 (15 September 2021):
“The Federal Circuit and Family Court of Australia Act 2021 (‘FCFCOA Act’) contains a number of provisions with respect to case management and the purpose of the Court. Sections 190 and 191 of the FCFCOA Act make it very clear the Court has an overarching purpose of attempting to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. They focus on the efficient use of Court resources and efficient disposal of cases that come before the Court to carry out the work in a timely manner, and to conduct the Court in such a way as to best promote the overarching purposes. It is important that litigants take into account these purposes and ensure that they conduct their litigation in a manner that does not cause unnecessary use of Court resources or their own resources.”
Another perverse consequence is that a party could potentially be immune from a trial which may make adverse factual findings against them or from being a declared a vexatious litigant simply because they have conducted themselves unreasonably and can’t be represented. If the approach of some judges is anything to go by, achieving finality in family law litigation might be an impossible task in some cases.
4. It encourages and rewards unreasonable and conduct
For some people the only barrier to them from behaving poorly is the negative consequences that may result. Witness the easy anonymity of social media and how that incubates abusive behaviour and causes it to flourish, free of any adverse consequences.
The consequence of no negative consequences for section 102NA parties that act unreasonably is that such unreasonable conduct can be expected to proliferate.
A party that engages private legal representation and is rude to their lawyers or makes baseless allegations of misconduct against their lawyers at least suffers the detriment of having to pay money to have new lawyers get up to speed in their legal matters.
Ordinarily, a legally aided party may have their grant of aid reviewed and they may not have another lawyer appointed.
None of those drawbacks can apply with section 102NA, because the party must be given free legal representation no matter what. It’s a consequence-free little bubble. Some parties know how to game the system: they make unreasonable demands or impose unrealistic expectations on their lawyers knowing full well that they can expect to have another lawyer appointed in their place at public expense, who they hope will yield more to their unreasonable demands and expectations.
Furthermore, the lack of negative consequences for failing to comply with trial directions, and secure legal representation provides unwarranted protections to section 102NA litigants from their own glaring failures.
Humans respond to incentives. Section 102NA of the Family Law Act rewards bad behaviour and provides insulation from negative consequences. Inevitably, that will lead to more poor behaviours.
5. Taxpayers pay for all this
There is a quadruple whammy for taxpayers from Section 102NA of the Family Law Act 1975.
As previously outlined, there is a consequential and significant waste and misallocation of court resources. Taxpayers pay for those scarce court resources and their waste through unwarranted adjournments and undue delay.
Section 102NA of the Family Law Act 1975 results in taxpayers paying for the legal representation of parties to a much greater extent than previously occurred. That is the second whammy.
The third whammy arises from a combination of these two factors.
This article has highlighted a number of farces that have occurred and will continue to occur under section 102NA of the Family Law Act 1975.
No matter how much undue cost and delay is incurred as a result of section 102NA of the Family Law Act 1975, the lawyers still get paid by the taxpayer for those delays. Whilst lawyers should be paid for the work that they do, even when they do not assist with the public administration of justice through no fault of their own, the consequence is that the taxpayer has to pay even more.
The fourth whammy is that because section 102NA rewards bad behaviour from parties, we can expect more of it to occur.
Whilst the unmeritorious and unreasonable are often the winners, the taxpayer is invariably the loser.
6. It undermines public confidence the administration of justice
In Aon, French CJ observed at [24] that:
“Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests.”
Section 102NA of the Family Law Act 1975 results in undeserved advantages and unwarranted delays at public expense, there is a tremendous risk of diminishing confidence in the legal profession and the administration of justice. It’s perhaps only a matter of time that horror stories concerning section 102NA will find their way into the mainstream media.
No economist would endorse section 102NA of the Family Law Act 1975. It is plain that whatever the benefits of this section, they are significantly outweighed by the costs. Section 102NA of the Family Law Act 1975 gives perpetrators and false accusers of family violence alike unmerited advantages, it has significant deleterious effects on case management and Court resources, and rewards bad behaviour by parties, all at enormous public expense.
The federal parliament must consider the following reforms to section 102NA of the Family Law Act 1975:
1. Repealing it;
2. Modifying it so that parties would only be entitled to a lawyer asking questions on their behalf to the other party the section 102NA order applies to;
3. Restricting its scope to only where allegations of family violence have been found by a Court to be true and/or concerns family violence of a sufficiently serious nature;
4. Prohibiting any appeal by a section 102NA party on grounds arising from or relating to their failure to secure legal representation for a trial;
5. Making costs orders mandatory when costs are incurred because a section 102NA party fails to get or keep legal representatives; and/or
6. Requiring section 102NA parties to pay fees into Court that other parties do not.
These measures would ameliorate or abolish many of the negative unintended consequences of section 102NA.
Author adminPosted on Categories Family law
Another unintended consequence of s102NA is that judges and lawyers can manipulate the outcome of trial proceedings by the considered use of s102NA to effectively make forced to be self-represented litigants (“SRL”) impotent at trial proceedings whereby a perpetrator party can escape cross-examination altogether by a strategic use of applying s102NA to trial proceedings.
Where a perpetrator party escapes cross-examination at trial proceedings, the primary judge is unable to make adverse findings of fact against that perpetrator party. Very convenient for the perpetrator party.
This is particularly noticeable in cases where the perpetrator party is represented by a legal practitioner at trial proceedings and the SRL is not.
Where a case proceeds to trial in these circumstances the primary judge is able to make adverse findings of fact against the SRL but not against the perpetrator party simply because under s102NA the SRL is able to be cross-examined and the perpetrator party is not.
In those circumstances; how can a trial possibly be fair?
(see Newett v Newett [2022] FedCFamC1F 439 and Newett v Newett (No 9) [2023] FedCFamC1A 23 Appeal matter)
Thank you for the opportunity to input,
Albert Anderson
Hi Albert,
In terms of the case you refer to, the SRL was found by Justice Baumann to have been the perpetrator of domestic and family violence, not the victim. She was also found to have been the perpetrator by a Magistrate, whose decision was upheld on appeal by a District Judge who noted the Magistrate’s findings were clearly correct.
Also, this person could have been represented by lawyers under the cross-examination scheme. Although it is not clear exactly why she was not, I infer given the observations made by Justice Baumann and my own experiences that more than likely she would have been a very difficult client for any lawyers to deal with. It is clear from Justice Baumann’s reasons that she significantly lacks self-awareness and regards anyone who does not agree with her own perceptions of her disputes with her former husband as not doing their jobs, biased against her and even corrupt. I’m guessing that each of her three sets of lawyers felt they could no longer act for her, or because she was a first year law student with some experience in the legal system she decided she could run her case better than the lawyers appointed to assist her. In either case, it was effectively her decision to self-represent and forgo cross-examination of her former husband. Despite that, it appears that Justice Baumann did consider all of her submissions, even if some of them were such that Justice Baumann only had to state them in order to refute them. It is plain to me that she would have fared better in the trial had she been represented, although that may not have changed the outcome.
I also infer that you have a close connection to her. No doubt you have read Justice Baumann’s decision and are aware it was upheld on appeal. As Justice Baumann found, she has been the cause of her own problems. Even so, Justice Baumann gave her a path to start re-entering her childrens lives, because he found there would be benefit to the children in spending time with their mother. Unfortunately, it appears she has so far turned down that opportunity. If you want to help her, I would suggest that you encourage her to engage professional help to deal with her mental health issues, recognise that her own perceptions and beliefs are not accurate and do whatever else she needs to do so that she can have a healthy and meaningful relationship with her children.
You conveniently ignore all the Government Family Law Inquiries that have found Family Court to be not fit for purpose, that it ignores all evidence of domestic and family violence as per the findings of Justice Sarah Derrington and that it should be abolished. I’m truly astonished by your answer. It is disingenuous. I know of multiple women whose lawyers under this scheme have refused to comply with their instructions and asked the questions required of them to the perpetrator so they can test the evidence. I direct your attention to the current case of Allen and Catherine Kassenoff in the US that is playing out in the media. She had 4 different Judges stop her from parenting her children but look at all the video evidence she presented of his abuse of the children and herself. You can’t say money doesn’t buy outcomes in Family Court. You can’t tell me that 97 percent of Fathers deserve custody or contact as referred to in the AIFS Study when 86% of matters before the Court are Family Violence matters and the recent Government Inquiry found that false allegations of Family Violence are rare in family court. Indeed, Professor Thea Brown found that less than 10% are false allegations. And of that less than 10% 55% of false allegations were made by Fathers. We have 1 woman a week being murdered by their ex-partner. 1 in 3 women subjected to dv. Sexual abuse of children is prevalent and 1 in 5 children will be sexually assaulted before the age of 15 but the Family Court pretends sexual abuse of children doesn’t exist. The reality is nothing will change and children will still be at risk until Immunity is removed from everyone and Judges held accountable for the decisions they make that ruin people’s lives. #Thosewithnothingtofearfearnothing The Courts are committing evidence tampering and illegally excluding evidence so they don’t have to make adverse findings against the Father. And, sorry, reading Reasons for Judgment doesn’t give you the full story as Judges cherrypick the evidence that is released to the public. Findings of facts made in Reasons for Judgment are riddled with errors and there is no comeback when the Judges are defaming you to the public. Perjury is also rife in Family Court yet the Judges are refusing to refer the offending party to police for charging. Why not? I can only remember one case where a person who committed perjury is referred to police. You can’t possibly make a fully informed decision based on selected information contained in the Reasons for Judgment. The Government is currently in the process of amending the Family Law Act because they know Judges are sentencing children to live with or have contact with abusers no matter what, so you can’t pretend there aren’t huge issues with the Family Court. There is also the establishment of an Independent Judicial Commission which submissions were due for earlier this year. You can’t pretend there aren’t huge issues and every Judge gets it right. Nothing in the Family Law Act or Rules require Judges to make findings of fact on admissions made by the parties. If an allegation is made and the perpetrator admits it it should be the subject of a positive finding of fact in the reasons for judgment, but the Judges aren’t doing that. Just like when a party has been proven to repeatedly commit perjury, attempted to pervert justice, filed false misleading statements, repeatedly mislead the Court, the Judge doesn’t do anything or make positive findings about that in their reasons for judgment if it is the Father. Professor Joan Meier conducted research which found Widespread Gender Bias Against Mothers in Family Court. It is titled Mapping Gender: Shedding Empirical Light on Family Courts’ Treatment of Cases Involving Abuse and Alienation. I suggest you give it a read. Also read The Saunders Study and In the Best Interests of the Abuser by Samantha Jeffries. Adverse Childhood Experiences are having terrible consequences for the children and their future. You have children being murdered because Family Court Judges don’t protect them. ie Thomas Valva (despite the school repeatedly reporting the abuse of the children to CPS they did nothing and he froze to death in the garage of his father who had full custody the Mother had known, James Ryker Biel raped and murdered in the care of the Father because he had custody, Piqui (Aramazd Andressian Jr) murdered by his Father despite the Mother pleading for Courts to protect him shortly before his murder, Kayden Mancuzo’s father murdered her despite his lengthy history of violence and mental health problems the Judge gave the usual time). There must be consequences for the Judges for the harm they are doing to children and victims of dv. No other profession has Immunity so why should Judges.
#Childrendeserveachildhoodthattheydon’tneedanentireadulthoodtorecoverfrom. Judges are NOT Gods despite thinking they are. Mental Health Assessments and Personality Disorder Testing must be conducted of Judges before they are appointed and every 12 months thereafter to prove they are a fit and proper person to hold the office.
Hello,
This post is about s102NA of the Family Law Act, so we are not prepared to answer all of your arguments or engage in a lengthy debate about the family law system in general. We have never contended that the family law system in Australia is perfect. Indeed, our post shows that we are prepared to criticise it.
Your comment about the family courts being not fit for purpose has some validity, but perhaps not in the way that you mean. We have often pondered on how adversarial litigation is the worst thing that can happen for bitterly separated couples and their children. Unfortunately, there does not seem to be a better way when they are heavily engaged in conflict.
As was said by Forrest J in Tabano & Yabon (No. 4) [2020] FamCA 1001:
“Hearing and determining disputed parenting orders proceedings in this Court is rarely, if ever, an easy task. This case has been particularly difficult for a whole range of reasons. Many observers looking at the court system in which disputes between parents about the parenting of their children are decided, assert that there must be a better, less adversarial, more child-focused way of going about it. Unfortunately, there are just some cases in which the parents, left to their own devices, even assisted by qualified and experienced family lawyers, psychiatrists, child psychologists, social workers, doctors, police, child welfare departmental officials, friends and relatives, simply cannot ever reach a resolution of the conflict that exists between them. They cannot put their enmity towards each other away and truly focus on achieving positive outcomes for those that need them most – their children. Their personalities are such that they persuade themselves that what they are doing is lovingly focusing on what is best for their children and that what the other parent is doing is selfishly and ignorantly focusing on their own personal interests. They very often get support in respect of the righteousness of their position from those close around them, particularly new partners. They cling to, admire and seek to draw further support from any person who gives them hope. They often reject, demonise and attack any person who questions their approach, even experts who are dispassionately trying to help. They have no capacity or insight to appreciate that they fuel the conflict that so terribly damages their children’s emotional and intellectual development. This is one of those cases. There is nothing left but for this Court to do what it is established to do in such cases – make parenting orders as it considers proper, with mandatory regard to the best interests of the subject children as the paramount consideration.”
Going back to the subject of the post, your comment about lawyers under the 102NA scheme refusing to comply with instructions for cross-examination reveals a lack of understanding of the role of lawyers in Courts. Lawyers are not the mouthpieces for their clients and their paramount duty is to the administration of justice. This means that lawyers must not raise issues, ask questions or make points in Court unless they consider that they would assist the Court in deciding the matters for determination. There are other professional rules that apply specifically to lawyers cross examining witnesses. Clients will sometimes ask lawyers to ask questions of witnesses that have no proper basis, or which are not relevant or for a collateral motive. Clients often struggle to see what is and is not relevant, and/or have their own ideas about how a trial should be run, but usually their suggested approach will not help their case and often may even backfire. For these reasons, lawyers must exercise forensic judgment in deciding what questions to ask and not ask of witnesses for the benefit of their clients and the administration of justice. Many clients do not understand this. Last year we were sacked mid-trial by a father we had under s102NA who thought he had the right to dictate to us and Counsel what questions were asked and that we were in the wrong for failing to take up every point he wanted us to.
“By a paradox which is obvious to any who have experience in our courts, the client is best served by a counsel who is manifestly independent.”
― Brennan J in Giannarelli v Wraith [1988] HCA 52
We hope that our comments above enable you to understand that Brennan J quote.
The Family Court system isn’t even close to being adequate let alone perfect. It routinely sentences children to a childhood that they need an entire adulthood to recover from. You can’t deny the findings, as much as you would like to as seen by your post, of many many findings of the various Family Law Inquiries that found it ignored all evidence of dv and fv, not fit for purpose and needs to be abolished. These inquiries have made these findings after extensive inquiries, reading submissions, interviews, research etc etc from thousands of people and not just one person’s word, ie yours. I don’t care how you try and twist it these were Government Inquiries and also the research by Professor Joan Meier that found widespread gender bias against women in Family Court. It should be noted that it is not just in Family Court that there is widespread gender bias, it is everywhere in society. We live in a patriarchal society. Look at the fact that the statistics state less than 1% of rapists are convicted. Gender forms a huge part of the problems in our society. What was she wearing? Were you drinking? Why were you out late at night? Why were you walking alone? etc etc. The victim is always blamed instead of the perpetrators being held to account. Read Louise Milligan’s Book, Witness, which clearly demonstrates this.
The Father was correct. Under s102NA you are simply there to conduct cross-examination not take over a self-represented litigant’s case and be a mouthpiece for that client as they have been banned from cross-examination. Who gave you the right to “play God” and decide what is and isn’t important. Take note victims have also been banned from cross-examining their abusers. The legislation was not intended to benefit perpetrators of dv which is exactly what has happened. Victims should have the right to cross-examine their abuser should they so wish or instruct a lawyer to ask specific questions and not be denied that right. A victim who has known the perpetrator for 10, 20, 30 years knows them way better than a solicitor who meets them for the first time on the witness stand during cross-examination and would be able to get admissions out of the perpetrator that a lawyer just can’t. There is no way you could possibly know the case better than the parties themselves. You can’t tell when the perpetrator is lying or know what question to follow up with to get an admission which then leads to the Court not making findings of fact available on the evidence.
I never EVER agreed with s102NA as I knew there would be unintended consequences and it would harm victims of dv which is exactly what it is doing. None of the other changes that have been made have kept victims safe. Instead Judges are twisting the law to benefit the perpetrators instead of acting in the best interests of the children. You can’t tell me that Judges wouldn’t change the Orders they make if they had Immunity removed and were held legally, civilly and financially responsible for the harm they are causing.
Family Lawyers have been deliberately screwing victims of dv for decades. Telling them not to raise allegations of family and domestic violence or they will lose their children. Chief Justice Bryant was interviewed in relation to this and there is a news article about it where she said she hopes this is not the case when it clearly is. I was told exactly that myself and so have a heap of my friends. I find it absolutely ludicrous that you state that a lawyer’s paramount duty is to the administration of justice. There is no such thing as justice only a legal system that is long past its best before date that needs to be abolished because you can’t train the ingrained biases and beliefs out of the people in the Family Law System. No perpetrator of dv should ever get contact with their children and certainly not one that threatens to kill them or intentionally harms them to get back at the Mother in revenge for kicking them out. 95% of couples work out parenting issues between themselves, it is the 5% who don’t who should never be forced to coparent as 86% of those before the Court are DV matters. It is not a bitter parenting dispute, which I find really offensive by the way as it is not reality, it is a victim trying to protect their children from a perpetrator.
Just as a side note, I have worked law my whole life for many many decades so I’m well aware of all the shortcomings, biases and corruption in the legal system and will say it like it is. I have nothing to financially gain from keeping the system exactly like it is, unlike you. My first priority is to change the system so it no longer harms victims and holds perpetrators to account instead of them being given a free pass.
Thank you for your comment. I don’t think we are going to agree.
I note you have insist that a lawyer’s role under s102NA is to be a mouthpiece. This is demonstrably incorrect and with respect indicates that your knowledge of how the legal system might be superficial or inaccurate.
I refer you to rules 41 and 42 of the Barristers Rules:
“41. A barrister must not act as the mere mouthpiece of the client or of the instructing
solicitor and must exercise the forensic judgments called for during the case
independently, after the appropriate consideration of the client’s and the instructing
solicitor’s wishes where practicable.
42. A barrister will not have breached the barrister’s duty to the client, and will not have
failed to give appropriate consideration to the client’s or the instructing solicitor’s
wishes, simply by choosing, contrary to those wishes, to exercise the forensic
judgments called for during the case so as to:
(a) confine any hearing to those issues which the barrister believes to be the real
issues;
(b) present the client’s case as quickly and simply as may be consistent with its
robust advancement; or
(c) inform the court of any persuasive authority against the client’s case.”
There is no basis to say that under s102NA these rules do not apply. That is not reflected in the Barristers Rules nor the Family Law Act. Indeed, that is an absurd position.
I note that you are very concerned about family violence. I am sure that you can appreciate that if lawyers became mere mouthpieces under s102NA, that would provide abusers with the opportunity to harass, intimidate or cause distress to their ex-partners and other witnesses through their lawyers by asking irrelevant or inappropriate questions. Of course, such conduct towards witnesses is exactly the sort of thing that s102NA for all its shortcomings was designed to avoid. Lawyers are not playing God by exercising proper forensic judgment. Rather, as my previous comment noted in doing so they are serving both the interests of their client and assisting the Court.
You have said that “Professor Joan Meier that found widespread gender bias against women”.
Professor Joan Meier’s research seems to have been exclusively based on United States cases. Your comment is misleading because gives the impression that Professor Joan Meier’s research relates to the Family Court in Australia.
How on earth you can extrapolate from a study of Courts in the United States to make comments about the the family courts in Australia we cannot possibly fathom.
Furthermore, when the subject of the post is s102NA of the Family Law Act, Professor Joan Meier’s research about United States cases which do not concern or relate in any way to s102NA of the Family Law Act is utterly irrelevant.
One of the earliest lessons and most important rules you learn when practising law is that you cannot be a mere mouthpiece and must exercise forensic judgment in Court, particularly when you have a client prone to making wild allegations without evidence.
Judge Coates has recently referred a solicitor to the Legal Services Commission for not having observed this fundamental principle:
“Unfortunately it seems necessary to state that if there is no evidence, then there is no evidence.
Allowing a potential litigant to make any and every wild statement that comes to mind is not the role of the practitioner and is in reality anathema to the role of the legal practitioner, who carries a very heavy responsibility to ensure that far reaching legal powers are not exercised needlessly or on an uninformed basis.
Even when supplied with documents secured by the husband in his response documents, as stated in the judgment, documents not helping her case, it appears that no consideration was given to withdrawing the wife’s case.
Instead her case continued to make serious allegations of people including a real estate agent, a women not named but identified as the husband’s girlfriend, a woman by the name of Ms L and solicitors previously involved in mediation proceedings, such allegations claiming illegal acts such as fraud, break and enter, stealing and possibly acts amounting to the perversion of justice when touching on the mediation proceedings…
Rule 3 and 4 of those rules make clear that the fundamental duties of the solicitor – the officer of the court – encompass the duty to the court and the administration of justice and that such duty is paramount and prevails to the extent of any inconsistency over other duties.
In other words, that fundamental duty subsumes other ethical duties, such as serving the best interests of the client and to deliver legal services competently and with diligence.
The materials referred to by the solicitor and the case put forward by counsel did not address the possibility that the conduct referred to in the judgment was that which may fall short of the standard of competence and diligence that members of the public are entitled to expect of a reasonably competent practitioner, both under the rules and as developed over a long period of time by the courts and the professional societies for solicitors.”
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC2F//2023/670.html