• Trevor Cooper

Interim report Joint Select Committee on Australia’s Family Law System

An interim report would normally give an indication and insight into what the committee is thinking and where they are heading. Apart from the section “Australian Labour Party Additional Comments”, which tends to show limited changes in their position, possibly due to a factional cognitive bias, the report does not provide any definitive indication.

Structured to highlight diverse perspectives - One of the things I found fascinating about the report is the way it is structured to mirror the adversarial nature of a judicial system or the polarisation of perspectives that features prominently in politics now days. In the large part, it outlines the areas and the positions and observations for and against a given area, for example be it legal fees or why there are delays in the court. With respect to the report showing the polarisation of perspectives, it does a reasonable job. Hopefully this will not result in a cop out of it being a complex issue and the committee can navigate a way through. As with appeals and high court cases, dissenting views have their place and should be considered or we miss valuable insights and we should have hope in that it was not dominated and driven by a single perspective as has been the case in some inquiries. The report did not show where the consensus existed and try to find alignment.This may not be a bad thing as one common theme, in many of the disclosed submissions, was more resources and funding however to counter that proposition I paraphrase Scott Morrison that stated on another subject: “why would you invest money into a system that does not work!” To put it another way, a bad investment strategy to is like throwing good money after bad and can create a bigger problem.

We will hear from the Family Court - Paragraph 1.9 states that the committee intends to hold further public hearings with the Family Court itself which is something that is desperately required and gives us some hope. This is something that the 2017 inquiry decided against due to separation of powers. Certainly, I was impressed by a presentation by Alistair Nicholson (former Chief Justice) at a private presentation associated with the book “Mums the Word” about some of the issues he saw, so I am pleased to hear they will be presenting. Now that the inquiry has identified many of the shortcomings, how well the questions are put to the judiciary by the committee, highlighting the issues identified with the Family Separation Industry may result in informative input from the Family Court responses such that many of the issues can result in desperately needed improvements.

Adversarial system vs. Inquisitorial system The shortcomings of the report include the depth to which issues are considered and by way of example, discussion on the “adversarial system vs. inquisitorial system” which will hopefully be covered in the final report.

What was not highlighted is that the very request by a judge for a family report means that we already have, to some extent, an inquisitorial system but from my perspective, it is more a hybrid system or very limited inquisitorial. I know that I was asked questions directly by a judge, as was my former spouse in some of our cases! Again, asking the Family court if they need assistance to feel comfortable asking more questions directly and their perspectives will be interesting. Alignment of objectives toward the child One of the critical things that was simply not generally considered is the role of lawyers representing their clients such that one parent is combatting the other and if they really are an extension of their client. The comments and the complaints about lawyers doing somewhat questionable things to further the interest of their client which are embedded into the psyche of legal theory as is client confidentiality was indicated. When the courts primary responsibility is to the child and getting to the truth, then the current psyche of lawyers with respect to client confidentiality being primary concern and getting the best result for their client (which may be in conflict with the children) may be a key impediment to optimal outcomes. For example: In a family court situation, the concealing of a client’s mental health, personality disorder, propensity to use psychological or physical violence, drug or alcohol dependence, which if disclosed would breach confidentiality and against their clients desired outcome, all impedes getting to the truth or heart of the matter (quickly or at all) and not in the best interests of the children.

Although there are many others such as their duty to “deliver legal services competently, diligently and as promptly as reasonably possible” the current hierarchy of responsibilities of lawyers may be considered as:

  1. Client confidentiality

  2. Advance the interest of their clients and legal brochures state they may do or say anything to achieve this objective. The children rarely feature with the exception of when an Independent Children’s Lawyer (ICL) is appointed and the shortcomings of that appointment were outlined in the report and I gave examples in my book.

  3. As an officer of the court

The hierarchy of a lawyer’s responsibilities when operating in family matters should be:

  1. firstly, to the children,

  2. secondly, to the court as an officer of the court (to assist the court get to the truth) and

  3. finally, to their clients

and this lack of alignment with the courts aims and objectives appears to have not been considered. The separation of powers The committee may have fallen into the fundamental trap of separation of powers!

After participating in a previous inquiry, one of the fundamental traps that politicians suffer is the education they receive upon entering into parliament into the separation of powers being:

  • legislative,

  • public administration and

  • judicial

and may have largely restricted their mindset to legislative. Many people defend this separation of powers arguing that properly written legislation will result in judicial determinations reflecting that intent and hence the words “shall” or “may” become critical in legislation while maintaining independence. Similarly, when a constituent has an issue with administration, their elected member may refer the matter to the relevant minister and as many of us have experienced with police, courts, coroners etc, we receive a well-crafted response from the administration (public service), signed by the responsible minister that the complaint is referring to an operational matter, resulting in many real problems falling through the cracks and maintenance of the status quo. The very operation of the administration of government has not been brought into question within this interim report in a significant way although some services highlighted the discrepancies (which include the bias in funding of services and service delivery) but not how and why it has occurred. I will deal with this more in accountability.

Accountability seems to have only been partially covered and some may say indirectly in various areas, as opposed to a major theme.

  1. The behaviours of parents were covered in systems abuse and for example, perjury was covered with many people complaining it is not prosecuted and the perspectives of whether perjury is a problem or not were discussed but again, no recommended actions or conclusions reached. How the inquiry would foster personal responsibility for example by producing documents without court demanding, fully participating in mediation and bringing about a cultural change that encourages an amicable separation seems to have been missed and focussed on more rules.

  2. The question of accountability also applies to other areas such as report writers. While the divergent views on report writers were covered and the clear issues were again revealed that were consistent with past reports. Unfortunately, the membership organisations again placed an emphasis on mandatory education and training (a service they supply and profit from), along with accreditation through professional membership of their bodies, featured prominently in submissions. Nowhere did they propose a method of self-correction through accountability and the use of the existing court system to its advantage. Simply put, if all those doing family reports were to video their interviews, the methods of questioning would be revealed and conclusions that where flawed would easily be challenged. Those doing things wrong could be identified through professional supervision and corrected with training such as bias training or in extreme cases, such as implanting false memories, sued for professional negligence and license to practice revoked to avoid others becoming victims and so many faulty reports being submitted to the court.

  3. The Accountability of the system itself was not covered even though it is the reason for the inquiry. Follow up and measurement, commonly referred to as Key Performance Indicators (KPI’s) of the effectiveness of the court achieving what is in the best interest of the child was noticeably absent. The courts do their annual report containing a financial balance sheet and the throughput of the widgets, (in family law this is the number of cases) but not the outcomes of the best interest of the children or for families. While the best interests of children have never been measured in Australia, some researchers have shown the relatively poor outcome for children of non-amicable separations. What could be measured is the net assets of the family at the start and end of the matters i.e. to get a benchmark and monitor the costs of disputes and the funds remaining to raise the children. A family with young children needs to turn one home into two, which is difficult enough and the retention of assets to provide for the children is a KPI that can be measured in financial statements, required under legislation if they are provided at the start and end of the dispute. If such a KPI was available then the original aims of the Family Law Act (to make things simpler, quicker and less litigious) could be measured.

By far the most troubling thing I witnessed in the public hearings was the testimony of various public servants that gave testimony that appeared to be in conflict with other evidence. These were in some basic areas such as the escalation process of perjury.

  1. We saw the representative from the Attorney General (AG) state that the judges were to report perjury to the police where as other evidence showed that the reports must go through the Chief Justice and to the AG as outlined by former Justice Collier in the "Dad" documentary. Historically, even a former Chief Justice reported on this subject when she publicly complained that the AFP did not act on a request she made for prosecution when a family law case revealed the criminal act of bigamy.

  2. Another was the National Children's Commissioner, Australian Human Rights Commission that espoused with respect to parental alienation “I think that's a pretty kooky theory” and I would point people to a response by the Eeny Meeny Miney Moe foundation that outlines key professional papers and books that the National Children’s Commissioner should have been familiar with before misleading the inquiry. How can someone give testimony that is so ill informed?

To explain what is disturbing however, is the culture that exists within the public service and government that has allowed the massive damage to our children and parents and the opposite outcome to when the aims and objectives of the Family Law Act was formulated! The inquiry has not addressed that the objectives of the introduction of no-fault divorce (to make things simpler, quicker and less litigious) within the Family Law legislation have had the opposite effect to that with which they intended. What went wrong with government monitoring and processes that has allowed this to occur? Many predicted that the Julia Gillard removal of perjury (S117AB) would have the effect of rampant false allegations and while some politically motivated claim this is not the case, many on the ground see it every day and question why has it not been corrected already? While some claim women don’t lie and produce obtuse surveys, where has there been a rigorous assessment of this particular amendment compared with the desired outcome been reviewed?

I look forward to the questioning of Family Court While I do not have access to the confidential submissions, the report appears to show the issues raised and concerns such as lying to police, lying in court, misuse of mediation to simply delay matters, abuse of court processes (to delay matters and as a form of domestic violence), massive legal fees etc have been canvassed. It will be interesting to see the quality of the questioning by the committee and what responses the Family Court representatives will volunteer in their opening statements and when responding to questions by the committee when they do appear as indicated in paragraph 1.9. Certainly, the questions I would be liking to ask the family court is:

  1. In the UK, we are informed that they reduced the waiting and processing times enormously when they have a similar ratio of judges to cases simply by enforcing the rule of the timely submission of documents. Suddenly lawyers realised if they submitted documents late they were not accepted and in trouble with their clients and subject to valid legal services complaints if they had not managed the document flow and the legal system sped up. Is there a specific reason this approach has not been adopted here in Australia and what is your perspective?

  2. Many of the complaints were that judgements are useless unless the orders are enforced by the court. In the US state of Colorado, there is special legislation for “Custodial Interference and Parental Kidnaping”. I am informed that there were parents that were given weekend detention which ensured child contact takes place and that the parent refusing to abide by a court order returned to work such that there was no loss of income to support their family. Enforcement resulted in a marked decrease in recidivism and incidence of the crime as parents knew they would be held accountable for their actions. In Australia, we already have fines and custodial sentences for parents whose children repeatedly facilitate truancy, yet we say it is too damaging to do so if a child is restricted from seeing or knowing their family. Is there a specific reason that a similar approach to that of Colorado using existing contempt laws or would you required special legislation within Australian Family law to eliminate the issues of not enforcing judgements? What is your perspective?

  3. The Best Interests of the Children is not measured by the court although all judgements are made in their interest. We have seen evidence from EMMM and in the book “The Pinball Machine The Family Separation and Parental Alienation” of damage caused removing a child from a good parent and we know from various sources that the children from non-amicable separations do worse on almost all quality scales from education, mental health, etc. Is there something you would like to see in terms of measurement of the best interests of the child and feedback to the court that would help the judiciary?

  4. We have seen the complaints about the Single Expert Witnesses (SEW) and this was similar to other inquiries and as such, the validity of the complaints seem indisputable. Some people suggest making it mandatory for all SEWs to video record their interviews so that they can be peer reviewed for training and in extreme cases action taken. Clearly the adversarial court system may be the best tool to actually bring those doing low standard reports to account where video evidence can be contested by highly experienced experts. What are your views and perspectives on SEWs?

  5. The fundamental issue with the adversarial system is that lawyers represent their clients and we have had many negative reports as to the performance of Independent Children’s Lawyers (ICL). Is there something we should be doing to change the fundamental basis of a lawyer client relationship to ensure that their work aligns with the best interest of the child and that of the system?

  6. We heard of the many issues of Mental Health, Drugs and Alcohol and people with these conditions fighting to maintain custody, avoiding court orders to provide test results or not seeing mental health professionals to be assessed up to a final hearing, often without the evidence requested by the judiciary. Why does it take so long to establish these basic facts and is there a better way?

In conclusion, the labour party representatives on the committee have shown their hand, displaying the same gendered ideological bias, the same bias that pits one gender against another, the same bias that destroys the very principle that we are all the same under the law. The committee as a whole has not made its recommendations so there is some hope that they will end the gendered divisiveness that plagues the Family Separation industry and shift the focus back to that of the children.

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