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Happy Days

privilege

I was born into privilege

My skin is white and cloaks me like a Mayoral robe 

marking out my status for all to see 

I am male and straight  

and have never had cause to question my gender or sexuality 

I was born without disability 

I can see, I can hear, I can speak 

I am too fat nor too thin 

I am not too short or too tall 

I am just right 

I fit in 

I can read and write  

and have always had books to read on any topic that has interested me 

I finished school and went to university  

and it was free 

When I have been sick, I have seen a doctor 

and it has been free 

I am able to express my opinion  

without being threatened, imprisoned, tortured, killed, exiled 

without being talked over, put down, ridiculed or patronised 

based on my race, gender or education 

I have always had sanitation and clean water from a running tap  

I have always had enough to eat 

I have always had 

enough 

I was allowed to vote when I reach voting age 

no further qualification required 

no recitation of the Justices of the Supreme Court 

just my birth and my age a determinant of my right 

my sex, race, education, my history irrelevant 

I vote for whomever I choose without question and without consequence 

not dragged from my bed 

or hung from a tree 

or beaten and dragged through the streets 

forced to flee 

I am able to join a union or political party of my choice, without consequence 

I am able to practice any faith and worship any god – or not – such as I may choose 

I have never lived with armed police or troops on my streets  

When I see the Police, I am not afraid of them nor am I given cause to be 

I have never lived with war nor been a refugee 

I can go where I wish 

Without the compulsion of fear, violence and oppression to drive me 

my passport accepted to grant me welcome 

my mode of transport irrelevant  

I have never been refused work based on any circumstance but my lack of merit 

I have never been refused service based on my race, colour, ethnicity, gender, sexuality or physical characteristics  

I have never been made to feel like a burden upon society 

I have never had to listen to labels like “lazy”, “leaner”, “disinterested” or “unmotivated” and realise “They’re talking about me”  

those labels applied because I was unable to work or because there was simply no work for me  

I have never had to listen to shock jocks talking about “those people” and knowing that I am one of “those” people.   

I have never had to hear Senators say “these people may have been the victims today; usually they are the perpetrators”  

and know that they are talking about 50 of my brothers and sisters and their children 

slain in prayer 

having greeted their killer, not as perpetrators, but with a welcome “salaam brother” 

I have never been removed from my family 

I have practiced and enjoyed my culture whenever and however I have wanted 

without having to explain or justify it 

When I turn on the TV, people look and sound like me 

and they tell my stories 

I have been taught my language and allowed to use it and I have never been told that I cannot 

I have expressed myself without punishment or consequence 

I have never been married as a child or without my consent 

I have never been enslaved, trafficked or prostituted 

I have never been labelled or treated differently 

because someone thinks of me that way 

I have never been made to feel that my difference is something that I should be deeply ashamed of 

something that makes me lesser and which disentitles me 

something that offends the decent and right minded 

something that is the cause of problems  

the cause of my problems 

that I am a problem to be solved 

and that I am somehow ungrateful and troublesome if I expect to be treated the same as others 

to be given the same as others 

to be consulted about decisions that affect me 

I have been accepted for my strengths and criticised for my weaknesses  

rather than my inherent characteristics assumed as flaws and incapacities  

I have not had to march, be beaten, imprisoned, murdered 

to have my humanity accepted 

to obtain what was and has always been mine and which has been possessed by others 

to obtain that which was denied to me based on the characteristics with which I was born or which I inherited 

My whiteness, my maleness has been entitlement enough 

I am acutely aware that my privilege is based in someone else’s disadvantage 

That my freedom is simply privilege extended until enjoyed by one and all 

That privilege means hierarchy  

And that hierarchy is antithetical of equality 

That humanity is a universal truth denied by privilege 

That my privilege denies my humanity 

That the very elements that distinguish me as unique have become corrupted as the markers of privilege  

I have learnt that my privilege is a lie so huge that it cannot be swallowed whole 

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness”  

So wrote the slave owners, the misogynists, the intolerant, the Indian killers, all white and male 

And so, their privilege was protected by god and thereby made unassailable, undeniable, justified and perfect. 

Fathers are important

The Importance of Fathers

A paper presented Sydney 16 August 2024 at the inaugural ADRA International Mediation Conference

Writing on this topic presents challenges for me.   

I am privileged to be a father.  Each day, I fill my role as a father to my two small children. 

I structure my life around my role as a father.  I get my children ready for school each morning.  I work school hours, so that I can take my children to and from school each day.  Each evening, I cook dinner, and, after dinner, I put my son to bed and read to him.  This is not only the most enjoyable but, I feel, the most important part of my day. 

But does being a father qualify me to talk about the importance of fathers?  I don’t think so.  At best, it qualifies me to talk about my experience of parenting and why I think fathers are important.  And that is the beginning of why I find speaking on the topic challenging. 

I am not used to speaking on topics that are very personal to me (and to every other father).  In fact, doing so makes me feel uncomfortable.  For many reasons, some of which will follow, I do not feel that I am or have ever been a “good” father.  For the 10 years that I was a judge that self-doubt was a real monkey on my back.  It meant that the “imposter syndrome” I already lived, was very real for me when it came to hearing and determining parenting cases.  I really did not feel that I (or, for that matter, any judge, report writer or independent children’s lawyer) had a right to “judge” a parent. 

Also, I am also conscious that this is not my first attempt at fatherhood.  It is my second. And I am so very conscious that my first attempt was pretty poor.  There was a lot I got very, very wrong.  At the very least, I was not the most “present” father.  So, in everything I say on the topic, indeed, everything I do each day this time around, I am conscious of the mistakes that I have made.  And I judge myself for those mistakes, very harshly 

Also, I do not believe that I have a close relationship with my own father.  It pains me to say so.  But at the ages that we now find ourselves, I doubt that we will ever be closer.  And that brings with it an enormous sense of loss and a certain hollowness. 

My colleague Laurence Boulle, with whom I am honoured to co-present, has referred to the exercise undertaken with a group of Mongolian men, of having them write a letter to their father.  In 2022 I undertook that exercise.  I wrote a lengthy letter to my parents (jointly) pouring out my soul to them and thanking them for everything they had done for me.  I felt I needed to do so whilst they were still alive (and they still are).   

I didn’t want or expect a response. Yet I received one-a brief, handwritten letter in my father’s beautiful copper plate hand. In essence, it simply told me not to worry and to try and be happy.  It ended with “your mother and I both love you and are very proud of you”.  It did not really engage with anything I had said in my 12-page letter.  But I had never expected that it would. 

I make clear that I do not, in any way, judge or blame my father for this.  He is a good man and a far better man that I.  He was an extraordinarily hard-working man and a wonderful provider.  He enabled everything I have ever achieved in my life (along with the reformist Whitlam government – the likes of which we have not had since and, sadly, may never see again – without whose reforms, I would likely never have attended University). 

When I think of my relationship with my father, the phrase that comes to mind is that annoying social media construct “it’s complicated”.  We are, in some ways, very alike and in some ways, so very different.  But also, when I think of my father, I think of the phrase that Eric Baker often used in judgements, that children need to know their parents “warts and all”.  Part of the problem in our relationship is that I really don’t know my father, or anything of my family history, very well. 

I am so very proud of my dad (and my mum).  They left England (with my two sisters and I) and moved halfway around the world, to Australia, to start a new life and to provide a better life for us.  There have been times that I have really questioned why they embarked on that expedition, but I never doubt their courage in doing so.  Whatever their motives, I know it worked out for we kids.  My eldest sister became the first person in our family, from the 1600’s to now, to go to university.  I was the second.  

I know that I’ve done well (you can develop the KPIs however you like) and have done better than I would have done if my family had stayed in England.  But it came with costs.  One of those was growing up without any extended family or even any knowledge that such things, whether in general or specific terms, existed.  It wasn’t until the second year of my law degree, sitting in a succession lecture, at 19 years of age, that I first really heard about extended family – grandparents, aunts, uncles and cousins.   

And my parents, especially my father, were the epitome of immigrant stock – hard working to a fault.  In fact, my father was very much a workaholic (one of the things we have in common).  But this meant that my interactions with my father, growing up, were limited.  I certainly remember and hold dear to me, the times we did spend together and especially the times we spent doing things together.  Those times were not all positive, but they were important and formative for me. 

And, perhaps, that personal understanding of the formative importance to me of my own father should be my starting point. 

I have had the privilege in my life of meeting an extraordinary woman, Professor Cindy Blackstock.  Once, while visiting Australia, Cindy gave a talk at my request at a Reconciliation Week event I had organised.  Cindy happens to be a Gitxsan woman from British Columbia. 

Cindy said something in her talk which resonated with me, being to the effect that we only value knowledge that is very new, from the latest research.  And yet, First Nations people value wisdom that is millennia old. 

In thinking about this presentation, on the importance of father, I have found myself continuously coming back to Cindy’s words as, the more I read and considered the topic, the more I felt that the topic of importance of fathers should not be approached as a revelation of what we are now discovering but as a remembrance of what we have chosen to forget, at least in Euro-centric societies (as opposed to First Nations communities). 

In Anglo-nomative societies, the role of fatherhood has changed dramatically since the industrial revolution. As opined by Roman Krznaric in “…pre-industrial society…in rural areas especially, family life and working life were based in the home. Running the household was a joint enterprise: while a wife rocked the baby, her husband built the cradle and cut hay for the child to lie on”.   

The industrial revolution, the movement away from at home subsistence and the concentration of labour away from the home and into factories and urban centres, saw men (and women) leaving their homes and, thus their children.  The duality of patriarchy and consumer capitalism then led to an increasing burden of parenting falling to mothers (rather than fathers) and the establishment of what is often referred to, even today, as the “traditional” roles of men as bread winner and women as homemaker and parent.  

American poet Robert Bly points out that before the Industrial Revolution a son participated in what his father did. He worked with his father. He shared in his father’s world.  But, as men (and women and children) began working outside of the home this disrupted family life.  Children had, and continue to have, less access to their fathers than they did two hundred years ago.   This arose not only from work outside of the home but from the normalising narratives that built up around this change – a man’s value became judged by his role as a provider (and thus an enabler of consumption).   

Through increasing work outside of the home, fathers are precluded from child-rearing.  And it is by reference to this absence of fathers from the home and engagement in hands on child rearing that might be a convenient point to think about why fathers are important and what is lost by their absence. 

Why are fathers important? 

A straightforward answer might be that fathers are important because families are important. 

A good starting point might be the International Convention on the Rights of the Child. The International Convention is incorporated in its entirety as an object of the Family Law Act 1975. The objects inform the way that the Family Law Act should be interpreted and applied and guides the outcomes that should be strived for.  

The preamble to the International Convention asserts that, ‘Childhood is entitled to special care and assistance.’ The Convention continues:  

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.. “ 

This portion of the preamble makes clear that the international community, the majority of the world’s nations, accept that the family is the fundamental unit of society.  This must also, at least by implication, point to acceptance of the fundamental acceptance that children have the right to grow up in an atmosphere of happiness, love and understanding. 

But perhaps anyone can be “family” and can provide happiness, love and understanding within a family?  Why are fathers different to anyone else? 

A good starting point to more specifically answer this question is provided by the English Association of Child Psychotherapists who opine “Children need fathers – just as they need mothers – to love them, to be interested in them and to respond to their needs, making them feel valued and understood”.   

One might posit that if the importance of a father is for them to love their children and be interested in them, that any number of people, of any gender and whether biological connected or not, could achieve these purposes.  But perhaps the answer lies more deeply. 

David Blankenhorn expands on paternal roles and their importance, suggesting four broad ways in which fathers benefit their children, being: 

Physical protection; 

Material provision; 

“Paternal cultural transmission” – the ability to contribute to the identity, character and competence of a child; and, 

Day to day nurturing – feeding children, playing with them, telling them stories, etc. 

The US Department of Health and Human Services went so far as to produce an extensive reference manual focused upon the importance of fathers in the healthy development if children.  Whilst many ways in which fathers are important to the healthy development of children are identified, an early statement of the authors would resonate with dispute resolvers working with separated parents: 

“One of the most important influences a father can have on his child is indirect – fathers influence their children in large part through the quality of their relationship with the mother of their children.  A father who has a good relationship with the mother of their children is more likely to be involved and to spend time with their children and to have children who are psychologically and emotionally healthier”.  

This might be seen as a reference to the maternal “gatekeeping” role with which dispute resolvers would be familiar.  However, more positively, this passage, as the authors go on to explain, embodies an important aspect of parenting, namely, behaviour modelling: 

“One of the most important benefits of a positive relationship between mother and father…is the behaviour it models for children.  Fathers who treat the mothers of their children with respect and deal with conflict within the relationship in an adult and appropriate manner are more likely to have boys who understand how they are to treat women and are less likely to act in an aggressive fashion towards females.  Girls with involved, respectful fathers see how they should expect men to treat them and are less likely to become involved in violent or unhealthy relationships” 

The real developmental benefits to children of involvement with a caring father are clearly spelt out as including: 

Better educational outcomes; 

Higher IQs; 

Better linguistic and cognitive abilities; 

Being more patient and better able to handle stress and frustration; 

Better emotional security; 

More secure attachment with, not only their fathers, but other care givers, including mothers; 

Better regulation of emotions, feelings and behaviours; 

Greater independence, self-confidence and self control; 

Less likely to be depressed and/or anxious; and, 

Better physical and mental health and less likely to abuse drugs and alcohol. 

These are real, tangible and life affecting benefits.  One can only hope that these benefits that fathers provide to their children might be considered by courts when interpreting the May 2024 amendments to the Family Law Act, when considering and interpreting the new, express focus of the legislation- “safety.” 

Current dialogues regarding men and their role in families, are dominated by considerations of violence and reference to “toxic masculinity”.  In light of this, it is not surprising that we attempt to define what a “good” father is.  My concern is that the benefits to children of having a present and involved father in their life, are not prefaced upon or determined by a father meeting someone else’s definition or expectation of what might be a “good father”.  I would suggest that, provided that a father was not a positively unacceptable risk to their child, if they were known to and/or interacting with their child, that they are important to their child and able to bring benefit to the relationship. 

It is befitting the topic of this paper that I should leave the last words to and by reference to my 3-year-old daughter. 

Just before completing this paper, I received of a new post about my daughter on her Day Care Centre’s platform.  The story was about my daughter playing with her baby (a doll) in the sandpit.  She gave the baby a bottle, then put her to bed and covered her with a (sand) blanket, being careful not to cover her face so that she was able to breath.  She then patted her baby to sleep, just like I do when I do her bedtime. 

The story reports that the educator asked her “what do babies need?” and my daughter responded with “grown ups to hug them all tight”. 

The story concludes with a comment by the educator: 

“It is great to see that [she] has an understanding and has taken from her real-life experiences of what a baby needs and how she can take care of a baby” 

Indeed, it is.  Because that’s what fathers (and mothers and grandparents and others) do.  They model behaviour and meet children’s needs, physical and emotional, and by doing so they provide the love, care, nurture and education that children need. 

But then, just as I thought I had the perfect ending, I thought that I would go one better and use my daughter as a research sample of one.  After I had gotten her dressed, I was brushing her hair and thought that she might give me some real insight and wisdom with which to end my discourse and so we had a conversation.  I asked her “Why do you think daddies are important?” 

My daughter put her finger to her chin and took a moment to contemplate her answer, then smiled and answered “POOH”. 

I remember you 

your hand, holding mine 

as we walk past the high street shopfronts 

The slow red buses rolling by 

conductors on their platforms 

waving to us, you waving back 

your hand large and strong 

enveloping mine 

The cool mist of the South London autumn wets my skin 

The sunlight, diffused by sooty clouds 

as we walk to the railway bridge 

Your hands around my waist, lifting me up 

to stand on the dark bricks 

Looking down at the rails and the stones and the litter beneath 

as the first wisps of warm air drift up from the tunnel 

before stream explodes out 

preceding the enormous locomotive 

hurtling towards Waterloo  

with the smell of iron and coal and power. 

In that moment there is only you and me 

your hands strong, holding me firm 

protecting me 

I remember you 

holding my hand  

And I realise that I remember those mornings  

Because they were so few 

I remember you, holding my hand 

the way I now hold your hand 

mine enveloping yours 

my hand strong and firm yet gentle  

and yours, weak and wrinkled and cool 

Yet still, as the monitor beside you beeps 

you speak of “rivers of blood” and “queue jumpers” 

and how Brexit will give England back to the English 

I realise that this might be the last time we talk 

our last chance to hear each other 

our first chance to hear each other 

I don’t want to remember you like this 

I want to remember you as the man I loved 

the man who loved me 

when you held my hand and nothing else mattered 

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sad person in court

Self-Represented Litigants and the Adversarial System

Family violence has managed to come to the attention of the media of late.

That discussion, long overdue, has had me reflecting on the violence inherent in our adversarial process.

Now, to suggest that the adversarial process is “violent” might seem contentious. So, let me explain.

In the last week or so, the Guardian has been running articles dealing with the cost of family law litigation1 – the cost to litigants, the use of litigation as a weapon, (especially to drive up costs), and the cost to lawyers who find themselves burnt out. The phrase “the system is broken” is used (indeed, the phrase is and has, for many years, been thrown about like confetti at a wedding).

But, what we do not question is the adversarial system that we use to address disputes. And that adversarial system, and our systems more broadly, are “violent”.2

Firstly, an adversarial system makes competitors of litigants.

It does not encourage or require co operation or collaboration. In an adversarial system, each party prepares and presents evidence in support of their own version of events to the court, and the court decides. The court can only make decisions on the issues that the parties indicate to the court are in dispute and decides only based on the evidence and argument presented to the court by the parties. You don’t raise it; the court doesn’t necessarily go looking. In some ways it is the ultimate “Don’t ask, don’t tell” system.

Secondly, lets look at the definition of family violence used in the Family Law Act.3

The definition defines family violence as “…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”. Now, while that definition is fresh in your mind, think of something more threatening, controlling and intimidating or which better causes fear4 than a system where a total stranger has the power to decide if and when you’ll see your children, whether they’ll live with you (and if they won’t, has the power to send the police to remove them from you), sell your house or restrain you from going where you want.

Now imagine that the system that wields this power is designed by and assumes that you have a lawyer and that you don’t.

They speak a language that is foreign to you. They have procedures that many lawyers don’t understand, everyone refers to themselves as “we”, the law that you have no excuse for being ignorant of is contained in lots of cases you’ve never read, etc.

For a person without a lawyer (and a good one at that) coming into that system, the system could only be seen as violent. It’s a speak when you’re spoken to, answer the question system where you will be challenged that what you want to talk about is irrelevant or inadmissible, where other people, such as report writers and independent children’s lawyers, get to express their views of what is best for your children when they have met you (and them) for, maybe, 30 minutes, and yet their opinion seems to mean more than yours. And if your hearing is before someone other than a judge, they may not even give you reasons for why you can’t see your children or whatever other interference in your family they have just engaged in.

So, I had my say about that some 10 years ago, in a case reported as Martin & Martin [2014] FCCA 2838 (19 December 2014) – this one’s on Austlii.

  1. On the afternoon before this trial, I had cause to be involved in a discussion with a colleague regarding the role of family dispute resolution in proceedings. During that discussion my colleague expressed his opinion that “the adversarial system has served us well for hundreds of years”. As part of a lively discussion between us I had opined that the adversarial system might be seen to have served certain portions of society well or served some better than others and that if the adversarial system was viewed from the perspective of Marxist jurisprudence or from the perspective of those without legal representation, that the utility and efficacy of the adversarial trial might not be so universally embraced. This case was heard the next day.
  2. In dealing with this case the accuracy of the above proposal, that the adversarial system “serves us well” (or who may be the “us” who are served well), is significantly tested.
  3. Before commencing the trial I have outlined various matters for Mr Martin as to the conduct of the trial. I endeavoured to explain the rules of evidence, the right of any litigant to cross-examine witnesses, object to questions, tender documents and to participate fully in the trial.
  4. Each of the matters set out in paragraph 253 of Re F Litigants in Person Guidelines [2001] FamCA 348(2001) FLC 93-072 was addressed with Mr Martin and for the sake of clarity I set out that paragraph below:
    • 253. Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.
      • 10. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
      • 11. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
      • 12. A judge should explain to the litigant in person any procedures relevant to the litigation;
      • 13. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
      • 14. If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
      • 15. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
      • 16. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
      • 17. a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott [1994] HCA 23(1994) 121 ALR 148 at 150);
      • 18. Where the interests of justice and the circumstances of the case require it, a judge may:
        • draw attention to the law applied by the Court in determining issues before it;
        • question witnesses;
        • identify applications or submissions which ought to be put to the Court;
        • suggest procedural steps that may be taken by a party;
        • Clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
      • The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
  5. In this case and many others before it I have been aware that the 20 minutes or so devoted at the start of a trial to addressing the Re F Litigants in Person Guidelines criteria with a self-represented litigant is ineffective in addressing the deficiencies and disadvantage experienced by the vast majority of self-represented litigants.
  6. Mr Martin listened patiently whilst I attempted to explain, as simply as possible and in plain language and using illustrative analogies, legislated and common law rules of evidence that, truth be told, are little or poorly understood by some legal practitioners and which create significant difficulties for others.
  7. To expect that such an outline of matters, at the commencement of the trial, would imbue Mr Martin with the skills necessary to properly conduct his business before the Court or that it would achieve a “Eureka moment” for Mr Martin is fanciful.
  8. In popular fiction such as “The Castle” (although that involved a lawyer out of their depth rather than a self-represented litigant) such “David slays Goliath” moments might arise but in reality they rarely do. In real life when Daniel is thrown to the lions (to mix or change metaphors for one moment) he is consumed. An outline of trial processes does not operate as an “angel” to keep Daniel safe from the lion’s jaws. They close and the lion’s jaws tear the mythical Daniel apart.
  9. It would be wonderful if a brief discussion of trial procedure and the rules of evidence could have real impact and achieve some movement towards a level playing field. It would be gratifying if, as occurred in “The Full Monty”, when Gerard is attempting to teach a dance sequence to a group of unemployed Sheffield men, a litigant could so clearly “get it” as “Horse” did explaining for the collective benefit of the group “it’s the Arsenal offside trap – he’s Tony Adams and he wants us all to step up to him and wave our right arm about”. But that does not occur. Instead, litigants such as Mr Martin simply look bemused and perplexed.
  10. With the greatest of respect to Mr Martin he is, as a self-represented litigant, a person who would generally be referred to as “unsophisticated”. Mr Martin is not an unintelligent man but his background and reading is not in legal texts. Accordingly, I have no confidence whatsoever that the outline of concepts such as the rules in Jones & Dunkel [1959] HCA 8(1959) 101 CLR 298 and Browne & Dunn (1893) 6 R 67 (HL) would leave any mark upon Mr Martin’s understanding of that which was about to be engaged in, namely, a contested trial to determine the best interests of his three children and the orders, if any, that would be made as to his involvement in their parenting. The fact that Mr Martin failed to cross-examine Ms Martin on any area of the evidence of importance or relevance confirms that pessimism is well placed.
  11. My lack of confidence is all the deeper having regard to both the stress and anxiety afflicting Mr Martin and made all the more so as the subject matter of the proceedings was something dear and of great importance to him, namely, his three children and his relationship with them. Taking into account those factors I have no doubt whatsoever that my address of the matters which must be addressed by me as a consequence of Re F Litigants in Person Guidelines may as well have been a lecture on Soviet era collective farming delivered in the Russian language.
  12. In a paper prepared by the Australian Centre For Court and Justice System Innovation titled ‘Self-Represented Litigants: Literature Review’ Richardson, Sourdin and Wallace opined (page 15):
    • …many SRLs could find themselves at a disadvantage to adequately understand court procedures, rules of court, the language of the law and to represent their cases in courts.
  13. In a similar vein but far more pointedly the American commentator Harry Browne opined:
    • A fair trial is one in which the rules of evidence are honoured, the accused has competent counsel and the Judge enforces proper Courtroom procedures – a trial in which every assumption can be challenged.
  14. I respectfully concur with the recently deceased Mr Browne and particularly as regards the importance of the rules of evidence and the representation of parties and their interests (and for that matter the representation of the best interests of children) by competent counsel as being fundamental to a “fair trial”.
  15. In circumstances such as those that have arisen in this case, with Mr Martin prosecuting his own case and through no fault of his own predictably doing so very poorly, a “fair trial” simply cannot be achieved. That is a matter of profound significance bearing in mind that the best interests of children is the subject matter of the trial.
  16. In this case Mr Martin was required to meet the case of Ms Martin, (with some significant support from both the Family Report writer whose evidence was admitted unchallenged, and the Independent Children’s Lawyer), that there should be no order for time or communication between the three children and their father.
  17. There is some force to the analogy whereby the role of a judge at trial is viewed as comparable or analogous to a referee in a game of football.
  18. It is not the role of the judge (or the referee) to take sides. The judge/referee must apply the same rules to both teams without favour.
  19. It is the role of the judge/referee to ensure a fair and even contest in which the rules are applied consistently, uniformly, and equally. The judge/referee cannot, for example, apply the rules to one side of the contest only and turn a blind eye to infringements committed by the other team to give them a helping hand. 10 metres is 10 metres whichever team has the ball.
  20. Similarly, the judge/referee cannot join in the game and must resist the temptation to do so. The judge/referee cannot begin to join with one team against the other, picking up the spilt ball and running down field with it to score a try beneath the posts which the weaker team is incapable of doing themselves.
  21. To continue the analogy I make clear that to be the judge/referee in a trial such as this, with a self-represented litigant with no comprehension of how to conduct a case and matched against two highly competent counsel with well-prepared cases and many years of experience in the conduct of a trial, is akin to and, no doubt, as satisfying as refereeing a rugby league match between the Mascot under 12’s and South Sydney.
  22. It is unclear how Mr Martin has come to be self-represented. Ultimately, it is irrelevant. It is simply a reality. However, the subject matter of the proceedings is the welfare of children.
  23. As section 60CA of the Family Law Act 1975 dictates the best interests of children are the paramount consideration. Those best interests cannot be fully ascertained nor prioritised in circumstances whereby the evidence presented by Mr Martin is minimal and the testing or meaningful testing of evidence non-existent. The process (the adversarial trial) by which those best interests are to be determined has not served the children’s best interests well.
  24. Since the Universal Declaration of Human Rights in 1948 the “family” has been recognised and regarded as the fundamental unit of society – to be protected from undue interference other than by due process of law. Due process cannot be afforded in any meaningful way when a party such as Mr Martin is self-represented. As a consequence due and proper consideration of the best interests of children is not fully or properly achieved. The children’s rights, under the International Convention on the Rights of the Child, (incorporated in its totality into the Family Law Act as objects and principles) similarly cannot be fully or properly advanced.
  25. I make clear that I do not believe that the outcome of the case has been compromised by these difficulties. If I had felt that were so I would have adjourned the proceedings and made appropriate orders to endeavour to remedy evidential defects. In this case, as will be addressed by these reasons, I am satisfied that the only outcome that could occur is no order for time. I propose to conclude the matter on that basis – with no order that time occur rather than a positive order that precludes time.
  26. These are discretionary proceedings and Mr Martin has not persuaded me that I could safely make the orders he proposes. As the Full Court described in Tate & Tate [2000] FamCA 1040(2000) FLC 93-047 “…it was incumbent on the [father] to establish [his] case by admissible evidence and seek to persuade the Court to exercise its discretion in [his] favour on such evidence”.
  27. These proceedings have been heard and determined on the basis of the evidence presented and the application of the law thereto. However, “every assumption”, as referred to by Browne above, has not been tested. Very few assumptions have, in reality, been tested.
  28. In the criminal jurisdiction circumstances such as these have long been recognised as having the potential to give rise to injustice. It is for this reason, no doubt, that the sixth amendment to the United States Constitution creates the “right” to the assistance of counsel at least when deprivation of liberty is a possibility (as discussed in cases such as Powell v Alabama [1932] USSC 137287 U.S. 45 (1932) and Brewer v Williams [1977] USSC 73430 U.S. 387 (1977)).
  29. The deprivation of a relationship between a parent and a child and the massive interference that this represents in the affairs of the family is surely of equal importance to a loss of liberty.
  30. In Commonwealth jurisdictions similar discussions of the right to a fair trial for the accused in criminal proceedings have occurred specifically as regards adjournment or stay of prosecution (see for example, Dietrich v R [1992] HCA 57 as regards the High Court of Australia and R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1993] UKHL 10[1994] 1 A.C. 42 and The Queen v Crawley and others [2014] EWCA Crim 1028 as regards the English experience).
  31. I do not suggest that repeated adjournment or stay of parenting proceedings would better serve the use of the Court’s resources (for a discussion of the Court’s obligation to manage the use of its resources by individual litigants and the community at large see, for example, Haset Sali v SPC Ltd [1993] HCA 47 and Aon Risk Services & ANU [2009] HCA 27), the interests of justice or the best interests of children. Indeed they would not.
  32. In this case, where Mr Martin has spent no time with nor had any real or effective communication with these children for over four years and where Ms Martin seeks to continue that arrangement, adjournment would be counter-productive.
  33. The children’s best interests, and those of the parties’, would be better served by the conclusion and determination of the proceedings. However, that determination comes without any meaningful or active involvement or presentation or testing of evidence by Mr Martin.
  34. In well over 30% of cases before the Federal Circuit Court (per the Court’s annual reports) one or both parties are self-represented. Circumstances such as those which Mr Martin has faced are far from unique.
  35. The adversarial system and its processes have largely evolved in an environment whereby parties have been legally represented and legal practitioners have had an important, indeed integral, role to play in ensuring the effective conduct of proceedings. In circumstances whereby such a significant number of cases are absent players key to the process (i.e. legal practitioners) it is unsurprising that the conduct of a trial, such as this trial, represents such stresses and strains upon “fairness”.
  36. Civil courts have, historically, been the domain of the financially privileged. In the latter half of the 20th Century access to courts, to redress wrongs and resolve disputes, has grown significantly. That is as it should be. Justice should be for all. The consequence for courts of such ready community access without competent representation, Courts created in an environment where parties are, by and large, competently represented, is problematic.
  37. The adversarial process can be made “informal” or “less adversarial” but the inherent problem remains that it is an adversarial system in which the “adversaries” are anything but equal. In that regard one is reminded of the sage words of United States Supreme Court Justice Felix Frankfurter in Dennis v United States [1950] USSC 43339 U.S. 162 (1950) that “there is no greater inequality than the equal treatment of unequals.” Or as expressed by Frankfurter J in New York v United States [1947] USSC 89331 U.S. 284 (1947), “It is no less inequality to have equality among unequals”.
  38. In an adversarial system where possession and understanding of certain knowledge (e.g. trial practice, the art of cross-examination, rules of evidence, etc.) is assumed and required then it is inherently unequal for one party to be self-represented and the other represented by competent counsel. Whilst most are familiar with the legal maxim “ignorance of the law is no excuse” the reality remains that the vast majority of the community (i.e. non-lawyers) are ignorant of the law and do not possess the knowledge or skills to effectively participate in an adversarial trial as a self-represented litigant.
  39. The interaction of the Court and lawyers in the administration of justice was eloquently described by Justice Pagone of the Victorian Supreme Court in a speech ‘Divided Loyalties? The Lawyer’s simultaneous duty to Client and the Courts’:

The judge, and the integrity of the system, is peculiarly vulnerable to the advocates who appear on behalf of clients. A judge cannot undertake independent enquiries into the facts and issues of cases which require judicial determination. Judges do not have the staff, the financial resources, the knowledge, or the skills to make or to order their own enquiries about the matters they need to decide cases. It is neither efficient nor proper for judges to take on such tasks. It is efficient to leave the task of evidence gathering to the parties who are best placed to know what to investigate, what matters to pursue, where to find the facts, evidence and expert knowledge that needs to be pursued, and how best to present those matters to a judge when identified and obtained. It would also be inappropriate for judges to assume those tasks because it would expose the decision maker to the criticism of having ceased to be an impartial decision maker deciding between conflicting parties and to have become, in practical effect, a partisan in the dispute. The losing party to any conflict, and the public as a whole, can have greatest confidence in the fairness of an outcome where the process is manifestly impartial and where decisions are made by a neutral decision maker. Such confidence is likely to be maintained where the parties, including – if not especially – the losing party, have had effective control of the elements which went into the decision of a neutral and impartial decision maker.

An effect of this reality, and of these objectives, is that the judge relies heavily upon what lawyers advance on behalf of their clients. It is in that sense that the decision of the judge, and the integrity of the system, is vulnerable to the advocates who appear on behalf of clients[emphasis added]. Judges need to be confident about what they are told by the lawyers on behalf of their clients.

  1. I do not suggest that self-represented litigants can be treated differently. There is one set of rules and they must be consistently and evenly applied. Due process must be afforded to all parties equally and that requires a demonstrated and perceived impartiality of the bench. Whatever the rules or processes may be they must be adhered to and applied consistently and uniformly.
  2. But a process which better protected against such manifest inequalities in contests between the competently represented and the incompetently represented, including the “unsophisticated self-represented litigant”, and which allowed a more level playing field, can only enhance the perception and attainment of justice and ultimately the best interests of children.
  3. Self-representation by litigants is, and has for some time been, a reality. We have been slow as Courts to recognise this reality or contemplate its implications. Meaningful responses to that reality are, perhaps, overdue.
  4. The adversarial process with which self-represented litigants engage is a process which has always “worked” on the basis of competent representation of all. Perhaps what is needed is collective conscientização.
  5. It is not an issue of modernity or change for change sake to recognise that the conditions in which the adversarial process has developed and flourished have changed. Democracy and justice are living concepts that change and have changed over time. The trial processes of the 21st Century have evolved and have not been immutably fixed since time immemorial. Laws and legal processes change and evolve and must be recognised as doing so. It is a strength.
  6. Trial processes are a means to an end and not an end in themselves. The trial process has evolved to allow justice to be obtained. It is the role of the law and of courts to deliver justice. If the process can be questioned as to its efficacy in achieving justice in all circumstances then the question is valid and important. After all the steam engine served industry well but changing conditions saw its demise at the hands of the (arguably more “efficient” though vastly more polluting) oil engine. If the effective attainment of justice is the goal of the court then an equally valid question might be posited as regards the adversarial trial in circumstances such as these.
  7. These strains are recognised, for example, by the Access to Justice Arrangements–Inquiry Report of the Australian Productivity Commission and in submissions made to that Commission by bodies such as ACT Legal Aid (calling for the Australian legal system to adopt aspects of the European “inquisitorial” court process and reduce reliance upon the “lawyer driven adversarial system”). Indeed, if lawyers are the drivers one might ask who is “driving” in the one third of cases with no lawyers.
  8. I am concerned that in the absence of some attention to this issue and relevant and appropriate responses being made to the way parenting trials are conducted that fairness, justice and the best interests of children will inevitably be disadvantaged or perceived to be so. Moreover, such “unequal” trials, with unsophisticated and poorly prepared self-represented litigants conducting their own case against competent and experienced advocates (and I make it clear that counsel for the Respondent and Independent Children’s Lawyer had been most generous, accommodating and even-handed in their dealings with Mr Martin and no criticism is raised of them as they have acted properly and appropriately) have the potential to reflect the type of trials which led to the partial emptying of English slums through the conviction and transportation of self-represented working class criminal defendants in the late 18th Century and their involuntary deportation to Australia.
  9. I am bound by my oath of office to “do right by all manner of people”. By the terms of that oath I am obliged to hear and determine cases which come before the Court and to do so in accordance with the law, both as legislated by Parliament and as defined by the common law. I am satisfied that I have done so in this case. I propose to do so in all others. However, the frustration which arises in seeking to “do right” to self-represented litigants such as Mr Martin when the preparation and presentation of his case is, with the greatest of respect to him, incompetent, is extreme.

The contents of this document and any comment or opinion expressed is authorised by Joe Harman on behalf of Joe Harman

1 20 May 2024 “I couldn’t do it anymore”: Family Lawyers quit amid burn out and pain of billing DV victims”; 17 May 2024 “Debt, danger or a decade of fighting: how a lack of legal services leaves DV victims with dire choices”; 17 May 2024 “Ten years and $200,000: the cost in Australia of protecting a child from an abusive ex-partner”.

2 Marxist-Leninist theory considers the state and its instruments, such as the police and courts, as an instrument of class oppression, directly favouring the interests of the ruling class. When you consider that Australian society operates within a “common law” system, or a system of judge made law, it is rather easy to agree with this proposition. After all, in a common law system, a system of precedent, where the legal principles that are used to determine disputes, are based on the opinions and world views of a few dozen judges, who are answerable to an even smaller pool of appellate judges, a few dozen folk decide how everyone should divide their property and parent their children.

3 Section 4AB

4 In a 21 May 2024 article in the Guardian “’We start the day with 60 people waiting’: the lawyers helping the ‘never-ending list’ of Australia’s DV victims” a woman is quoted as saying of being self-represented “[it was] horrific, it was the most terrifying thing in the world…like I could barely speak in there….I self-represented for two years and I couldn’t handle it any more. So, I gave him everything on his terms”.

judgement the perfect storm

The Perfect Storm

On 6 March 2020, I delivered an ex-tempore judgement in an interim case.

The judgement was orally delivered after 6pm. The reasons were then settled and sent to the judgements section for publication to Austlii. The principles of open justice dictate that judgements should be made available so that the public is aware of the work that the court does (we were regularly reminded by appellate judges at our annual plenary of the importance of doing so). For some reason, the judgement has never been published on Austlii.

Over the weekend of 27-28 April 2024, as rallies were held around Australia demanding action on violence and various “leaders” spoke in the language of epidemiology and “national shame” and “disgrace”, as though this were a new issue, I thought of that judgement. As the court has never published it, I thought that I would share the relevant portion1 commenting on delays, lack of resources and predicting that a perfect storm of disadvantage was approaching.

So here is the relevant portion of my March 2020 judgement:

  1. I am concerned that it is the role of the Court to determine proceedings founded in substantial propositions.
  2. Firstly, the determination must be just. The time that is taken to hear a case should be the time that is required to do justice. That is what timeliness is about – hearing cases within a time and with the amount of time necessary to do justice. Neither efficiency or justice should be conflated with quick and simple.
  3. There is nothing more complex than the lives of human beings, particularly when one is to consider the lives of multiple human beings who have been in relationships with each other, had children and separated from each other in circumstances alleged to involve family violence. Families are not only the fundamental units of society they are complex systems wherein each element of the system interacts with each other element.
  4. This case has a significant degree of factual complexity apparent at this early stage. That level of complexity does not lend itself readily to arbitrary limits such as 10 pages or 10 minutes. As Milan Kundera observes “There is a secret bond between slowness and memory, between speed and forgetting.” More concerningly, in cases involving family violence, there is a connection between rushing things and cutting corners and missing things. The things that are missed are risks.
  5. Thus, whilst the practice direction is, in essence, the only means by which Judges of this first instance trial court can hope to survive and attempt, as is expected of the Court, to deal with an onerous and excessive workload, a workload that cannot possibly be properly attended to with the resources available, it should not be applied to deny justice or a full and proper consideration of issues that are raised in proceedings, particularly, parenting proceedings.
  6. Secondly, as commented upon in English jurisprudence2, a practice direction does not create law. It is intended merely to guide the manner in which the Court’s processes operate. Thus, a Practice Direction could not be seen as a complete bar to parties presenting their case, as they considered necessary, so as to ensure that their children are protected, and their concerns have been heard.
  7. I am satisfied that with a lesser consideration of the affidavit, taking as it where, portions of it only, that the mother’s case can still be established in this case.
  8. Secondly, the court must ensure that in all that is done the child’s best interests are the paramount consideration. I am conscious of that discussed by Forrest J in Gordon & Gordon, particularly paragraphs 3 to 5 thereof, which I incorporate herein.
  9. Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
  10. Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
  11. In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.
  1. If the child’s best interests are to genuinely have meaning and be regarded as paramount, though not the singular, consideration in any proceedings, must infuse and inform all decisions that are made, including the evidence that is to be admitted.
  2. Surely, in a first world country, such as Australia, with its wealth and its expressed commitment, as demonstrated through the recently announced parliamentary inquiry into family violence, to protect against family violence it is a priority to ensure that the arrangements of separated families are dealt with properly and as promptly and efficiently as possible and dealt with in a timely fashion. If so then more resources might be a better path forward than simply cutting corners. It is time to acknowledge that there are inadequate resources to do the job properly.
  3. Cutting corners, as is required with the paucity of available resources, potentially, although thankfully, I am satisfied, not in this case, simply allows risk to go undetected or to be unaddressed.

Delay

  1. What these parties must be aware of is that the final determination of these proceedings, without a substantial change in the resources provided to this court, is some years away. There is no way that this case can possibly be heard and determined in under two years. It will be lucky if it is heard in three years. Accordingly, the orders that are made today are of some real importance, albeit rushed, hurried, dealt with in a list with little, if any, time to consider the matter fully and properly and with potentially significant consequences for these children and their parents.
  2. This case is emblematic of the difficulties created by an absence of resources, an absence of resources that governments past, present and, one might expect, future, cannot suggest they are unaware of. They have been spoken of, for example, since Brennan J’s discussion of the issue in Harris & Caladine in 1991. They were brought starkly to the attention of all by the Australian Law Reform Commission Report March 20193 and particularly paragraph 1.8 thereof, which I incorporate herein:

the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate. There is a chronic lack of funding for the appointment and proper training of judicial resources (including judges, judicial registrars – none of whom are currently employed within the courts, and registrars), court-based social services professionals (including Family Consultants and Indigenous Liaison Officers), and legal aid services (including Independent Children’s Lawyers). As a consequence, children and families are deprived of sufficient time and attention being given to their matter at all stages of the process, with the obvious risks that this entails. Faith in the system is lost. The lack of resources has been a matter of concern at the highest levels for 30 years. In 1991, in Harris v Caladine, Brennan J said:

It seems the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s. 43 of the Act … It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of the Court under the Act. But the Constitution does not bend to the exigencies of a budget and, if the humanly familial relations create a mass of controversies justiciable before the Family Court, Justices must be found to hear and determine them.

  1. This is a case with some real complexity, as I have already observed. One of the real complexities to the case is the simple reality that these children are extraordinarily young. The youngest, four months of age, born well after the parties separated and who has not, at this point in their life, set eyes upon their father, let alone practised any form of relationship, if terminology such as “relationships” is even relevant to children of that age except in the loosest sense.
  2. The expectation of the community is that nuanced and informed decisions will be made with respect to these children. The decision that will be made by the court is based upon limited information.
  3. Certainly, any interim determination, as discussed by the Full Court in Goode and Marvel, is subject to limitations. All the evidence is not yet available or apparent. There is evidence to be commissioned. In this case, most assuredly, a Family Report or Part 15 report will be necessary. The parties are agreed that an Independent Children’s Lawyer should be appointed. All those things are necessary to do justice. All those things are necessary to ensure that everyone is safe. All those things are necessary to ensure that the best decision that can be made is made.
  4. Australia is a signatory to the International Convention on the Rights of the Child and the Universal Declaration of Human Rights, having played a significant role in their drafting and sponsorship of each. Both appropriately describe the family as the fundamental unit of society – not the company, not the dollar, not the economy but the family. Yet the families of this nation are left with a system which is routinely described, a phrase thrown about like confetti at a wedding, as “broken.” Indeed, it is.
  5. The individual judges and other staff of the courts are tired, exhausted, and fed up. That does not seem to be a message heard by those responsible for reform, amendment, or funding to address the difficulties that are apparent, the things that cause the system to be “broken.” These problems have been apparent since at least 1991. There have been myriad inquiries, including the Australian Law Reform Commission Report already referred to, which have called upon those responsible for the appropriate resourcing of the court to address those deficiencies.
  6. Prior to the recent ALRC report there were reports by The Productivity Commission,4 KPMG5 and others. All have discussed what might metaphorically be described as the difficulties of aspiring to be a Formula One racing team, (what had previously been known and understood the world over as Australia’s best practice model of Family Courts) with an operational budget barely enough to buy a second-hand Toyota Yaris. That is what the community of Australia is left with.
  7. Difficulties extend beyond the court. Every service connected with the delivery of justice in family law is underfunded and has been neglected for many years.
  8. This week the media is full of reports of the closure of volunteer support services to victim of family violence in Victoria, as the budget for Legal Aid has been cut. There is much hand wringing, much gnashing of teeth, many tears, some crocodile, complaining about those difficulties. What are we to do? The question is posed “How much justice can we afford?” Perhaps the question might be better reframed as “How little justice can we afford?” or more pointedly “How much injustice will we tolerate?” After all, those affected are only families, women escaping family violence, children, and their parents. What could be wrong with not meeting the developmental needs of children?
  9. Parties, including these parents and their children, simply cannot have their business dealt with properly or in a timely fashion, when the system has no time for them.
  10. This matter will today be adjourned for a mention date to permit the appointment of an Independent Children’s Lawyer. That date will be in August 2020, some five months hence. There is simply nothing earlier. If a family report is then required, funded by the Court, and conducted by the Court’s family Child Dispute Services, it will take 10 to 12 months to complete. Even then, the budget provided for the completion of each family report is 17 hours. If more time is required because of the complexity of the case, tough! Matters will be dealt with in the budgeted time. Imagine if ICU patients were allocated 17 hours and then wheeled out of the ward and sent home whether well or not.
  11. Parties must fit their complex lives and their complex, often trauma impacted issues into what is available, being not very much. There are simply not sufficient resources to do things any more quickly. And even to do them in these time frames means cutting corners.
  12. The difficulties apply to Legal Aid. Even if an earlier mention date could be found, it is unlikely that Legal Aid could arrange and facilitate the representation of the interests of these three children much earlier. Their budgets, as has been made abundantly clear in report after report after report, are inadequate and languishing. Budgets have reduced in real terms, and quite significantly, over the last 10 to 15 years. Thus, the community is left disadvantaged.
  13. The recently introduced Prohibition on Cross-Examination Scheme6 lasted but seven weeks before it ran out of money and required an emergency top-up – a top-up which should have been seen as necessary, obvious, and apparent, even before the scheme commenced. It was simply never properly funded.
  14. Contact Centres are inadequately funded so that if orders are made requiring attendance at such a centre the delay before service can be offered will be measured in months, many months.
  15. All these problems flow on, including for this family. The very real issue directly connected with their primary controversy, the modality of supervision that will apply, is impacted by the woeful and inadequate funding of supervised contact services.
  16. Accordingly, this case is emblematic also of the difficulty the Court faces in seeking to address issues between timeliness and appropriate and effective response.
  17. The private supervised service proposed by the father is readily available quickly, because it can be paid for. The service funded by the community is not available – in the case of the Central West Contact Service, a service to which the parties have already been directed – for at least another 10 to 12 months. They would need to wait another four months before they can even speak to someone as to whether the service might be assessed as appropriate.
  18. All these difficulties are long standing. They did not come about overnight. They have existed in this system for the entire period that I have been in practice, some 35 years or so. However, they are worse now than they have ever been.
  19. The perfect storm is rapidly approaching when the delays, which are already the subject of significant complaint, will become very much entrenched and much longer than they presently are. There is simply no capacity to take on any more work with what is already available. Imagine if a crisis further reduced the ability of these services?

We need to recognise that you cannot legislate changes in attitudes. You change the circumstances that create those attitudes. You provide the services that assist (not the court, but in the community). That takes commitment, and it takes money.

It means being able to get help when you need it – from the police, a lawyer, a doctor, a psychologist. It means having access to emergency housing immediately, not being placed on a waiting list. It means being able to access a service immediately, not in 6 months.

It means accepting that the issue has been ignored (if not deliberately undermined and underfunded) for many years. Remember Abbott’s huge cuts of $300million to the sector which were followed after Turnbull’s ascendancy (if only the energy invested in leadership spills was replicated in taking real action about real problems), by the announcement of “the largest ever investment” of $200million (still a cut of $100million from what was already acknowledged as inadequate funding).

If we are serious about changing attitudes, then we need to review our decision making and adjudication processes. Our adversarial system is “violent.” Pitting parents and former partners together in an adversarial contest does not ameliorate violence and knowing that is what awaits, might make things worse.

Why is it that we have to endure headlines such as those of the Guardian 25 March 2024 “Australia’s $4.6bn Aukus funding to help create more than 1,000 jobs in UK” and, yet, we can’t have a sensible discussion about raising jobseeker payments, have difficulty finding a bulk billing GP (or in some areas, a GP)? Why is it that we shovel $9billion a year into fossil fuel subsidies and well over $1billion a year into maintaining an offshore detention regime that is cruel and brutal, that is violent, and yet if you live in some areas, such as Southwestern Sydney, it is verging upon impossible to see a Paediatrician?

As Phil Ochs sang “If we fight the wars at home, there’ll be no fighting anymore.” But then, as Billy Bragg sings “War, what is it good for? It’s good for business.” And whilst reflecting on that thought, consider this article from the Guardian 30 October 2023, a rare moment of honesty regarding the violence of capitalism:

Hamas has created additional demand: Wall Street eyes big profits from war.

Morgan Stanley and TD Bank hope for aerospace and weapons boon after a 7% value increase from the start of the Israel-Hamas conflict. The United Nations has warned that there was “clear evidence” that war crimes may have been committed in “the explosion of violence in Israel and Gaza.” Meanwhile, Wall Street is hoping for an explosion in profits.”

So, attitudes do matter. We are surrounded by violence. It is normalised by government policy and spending – imprisonment, immigration detention, child removal, etc. It makes me reflect on the old Oxfam poster hanging above my desk:

It will be a great day when our schools get all the money they need, and the air force has to hold a bake sale to buy a bomber.

The contents of this document and any comment or opinion expressed is authorised by Joe Harman on behalf of Joe Harman

Happy Days

Oh, Happy Days!

April 2024 is not a happy time in the world

Gaza and its people are being bombed and starved out of existence1, the money pit of AUKUS is consuming our children’s wealth before they even earnt it2, the wealth gap between the wealthiest 1% and the rest of us has been turbo-charged 3 and here in Australia, we lead the world in the inhumane treatment of asylum seekersiv4. Oh, happy days!

For those of you who have searched out this website due to separation, the problems of the world seemed dwarfed by problems on the personal level, and understandably so. After all, as Bob Marley sang, “everyman knows his burden is the heaviest, he knows it because he feels it”.

So, why this page?

I have long intended to update this website to incorporate regular postings relating to mediation and the circumstances that lead people to search out mediation. What I have been lacking is inspiration.

As soon as I walked into the North Hobart Vinnie’s on Tasmanian election day, I got my inspiration. Sitting on a shelf, above the recycled fashion, was a children’s book, “Happy Days”. I instantly knew what I needed to do. The prospect of writing a regular separation/mediation blog was suddenly attractive if combined with a general, topical, and satirical blog commenting on the things I care about.

And what was so attractive about this children’s book, “Happy Days”? The book the young girl was holding in the photo just screamed out to be altered into an Aboriginal flag. And the boy’s cricket bat just had to become a Palestinian flag. And they had to be amateurishly altered in the style of the “crimes” for which my favourite playwright Joe Orton and his partner Kenneth Halliwell were prosecuted and imprisoned.v5 The cover and its title would then become a banner for me to comment, as cynically and sarcastically as I wish, on topics that interest me, the topics which add to the “foul stench” of our society.

The posts that will be made to this page will be diverse

That is the benefit of owning the page after all6. It will give me a creative outlet and the opportunity for self-expression. However, I intend that everything I post will be subversive, disruptive and informed (I have always loved a good footnote/endnote). Further, whilst the posts will be eclectic and unbridled, they will all touch upon “justice”.

I want to challenge you dear reader. You may not always agree with me (in which case I would be delighted to hear your views). But do not sit by idle while those we call our “leaders” do as they wish. Remember, they do it in your name.

Footnotes
  1. And our government seems disinterested, at best, in taking any real action. When protesters enter the parliamentary chamber (18 March) to seek to have their voices heard by their deaf leaders,business carries on as usual, AG Dreyfus steps up to the dispatch box and jokes “I hope you can hear me”, the obvious, smug, self-satisfied smirks of those around him. The voices, let alone the plight, of
    the powerless and disenfranchised, an obvious source of humour. At least their voice was allowed, albeit for moments, whereas in NSW those suspected of potential protest could not even gain admission (21 March) and Jenny Leong MP, seeking to obtain their admission, was herself, expelled. All this and the accompanying hand-wringing, whilst the Future Fund ($492,000) and ADF (nearly
    $1billion) invest in or contracted with Israeli weapons and surveillance system manufacturer Elbit Systems. We can spend over $400 million on a failed referendum to seek to address the legacy of a colonial-settler system, but, at the same time, support another settler state. The Disposable Heroes of Hiphoprisy were right when they sang “hypocrisy is the greatest luxury, raise the double standard”.
    Perhaps, even more aptly, “there’s more to a seat in parliament than sitting on your arse…while we expect democracy, they’re laughing in our face” (Billy Bragg).n sitting on your arse…while we expect democracy, they’re laughing in our face” (Billy Bragg). ↩︎
  2. As Tupac Shakur sang (and, in a first, at 60, I am quoting Tu-pac) “They got money for war, but they can’t feed the poor”. On 13 March 2024 it was reported that “the program is forecast to cost $268bn to $368bn between now and the mid 2050s”. That was before the $4.6billion announced last weekend, that we will contribute to solving other people’s “supply chain” problems and sell us something we don’t need and can’t afford. At $370billion, that’s over $142,000 for every person, irrespective of age, in Australia. That sort of money would make a nice (aka barely adequate) deposit on a house. ↩︎
  3. In November 2023 it was reported by the Social Impact Summit and ABS that one in eight Australians (including an awful lot of children, one in six) live in poverty and that the top 20% of income earners see their wealth increase at four times the rate of the lowest 20%. Oxfam points out that “The world’s five richest men have more than doubled their fortunes from $405 billion to $869 billion since 2020 —at a rate of $14 million per hour— while nearly five billion people have been made poorer.” Government by the people, of the people, for the people, in action! ↩︎
  4. In reality, we always have. The Aboriginals Protection and restriction of the Sale of Opium Act 1897(Qld), is widely accepted for having provided the framework for South Africa’s Apartheid system of Bantustans, pass laws and disenfranchisement (now adopted with relish by Israel – after all, when South Africa accuses someone of Apartheid, they might know what they’re talking about) and PMs Keating and Gillard (both Labor PMs), through their mandatory detention and “Nauru solution” policies respectively, having given the blue print for, by way of example only, the English system of mandatory detention and the “p”. The privatised (and extremely expensive) incarceration of asylum seekers has been one of Australia’s “great” exports to the world, whereas disarmament and not aiding in the
    creation of the circumstances (see Iraq, Syria, Afghanistan, et al) that give rise to mass migration have not been on the Australian agenda. ↩︎
  5. Joe and Kenneth would borrow books from Islington Library and alter the covers and blurbs, usually to make them salacious, and then return them to the library with a view to subsequent borrowers being outraged. Ironically, the “vandalised” books are now an extremely valuable part of the library collection. On conviction, Joe and Kenneth were each sentenced to 6 months in prison, perhaps
    demonstrating the stupidity and absurdity of our legal systems as systems of control and oppression, leading Orton to comment that prison “…affected my attitude towards society. Before I had been vaguely conscious of something rotten somewhere, prison crystallised this. The old whore society really lifted up her skirts and the stench was pretty foul”. In 1967 Halliwell was again convicted, this
    time for the murder of Orton. ↩︎
  6. One doesn’t often get the chance to put themselves on the same level as the Murdochs of the world, controlling “the presses” and determining, nay dictating, your own editorial policy and agenda. But make no mistake, unlike The Sun, News of the World (Orwell would be so disappointed to hear of the direction it took before its eventual passing) and the Daily Mail, their will be no phone hacking, brown envelopes, telephoto lenses or meetings with the high and mighty by this author. But there will be an attempt to step outside of the silences that Chomsky spoke of in “Manufacturing Consent”, where the failure to mention events is deliberate whereby, as Miguel de Unamuno is reputed to have opined “sometimes to be silent is to lie”. ↩︎

The contents of this page and any comment or opinion expressed is authorised by Joe Harman on behalf of Joe Harman
After all, I wouldn’t want to breach s.328 of the Australian Electoral Act after my 2007 experience.


Christmas Card Riles Minister

By Kerry-Anne Walsh
March 25, 2007 — 10.00am

A SYDNEY lawyer is in legal strife with a federal minister and the Australian Electoral Commission over a Christmas card

The minister complained to the commission that Joe Harman’s card was a political advertisement because it featured exhortations such as “Tell him [John Howard] what you want for Christmas”.

The commission agreed that the card was political and did not carry any “electoral authorisation” and demanded Mr Harman cease and desist or risk legal action.

Taking a humourless view of Mr Harman’s political irreverence, the minister – whose identity remains secret – took offence at the yuletide card which read “What’s on your Christmas wish list? Peace? Tolerance? Understanding? Join us in sending the message to Canberra – tear off and send [the attached] postcard”.

The postcard was addressed to “Dear John” [Howard] and asked for his help in attaining a peaceful and tolerant world by ending Australian involvement in the Iraq war, “talking to your friend George” to bring David Hicks home, close detention centres and say sorry to the stolen generation.

It concluded: “I’m writing to you rather than Santa, because Santa doesn’t exist (a bit like the weapons of mass destruction).”

The card was addressed to Mr Howard at a PO Box address in Sydney.

Mr Harman’s festive cheer was interrupted on Christmas Eve by a letter from the commission advising his card breached Section 328 of the Australian Electoral Act.

The AEC considered the offence “less serious” than anonymous “electoral advertising”. Nevertheless, it advised him to “cease distributing the newsletter” until it complied with the act by carrying the name and address of the person authorising the political advertising.

“If the AEC’s request is ignored, the matter may be referred to the Commonwealth Director of Public
Prosecutions,” Deputy Electoral Commissioner Paul Dacey warned.

Mr Harman tried under Freedom of Information provisions to discover the identity of the complainant. The commission rejected his request, but a sympathetic bureaucrat told him he had “really pissed off” someone high up in the ministry, who had made the complaint.

“It’s a worry in a country like ours that we can’t even have a light-hearted go at someone,” Mr Harman
said.

Viewed 25 March 2024 at Christmas card riles minister

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