SPEECH
Tuesday, 25 March 2014
BY AUTHORITY OF THE SENATE
Tuesday, 25 March 2014 THE SENATE 100
CHAMBER
SPEECH
Date Tuesday, 25 March 2014 Source Senate
Page 100 Proof Yes
Questioner Responder
Speaker Madigan, Sen John Question No.
Senator MADIGAN (Victoria) (22:34): I rise tonight
to speak about what a barrister has described to me as
the all but complete denial of access to the courts for
ordinary people due to the severe and extreme cost of
litigation. This barrister, an experienced and objective
advocate in criminal and commercial matters, despairs
at the legal injustices that go unaddressed. He despairs
at the ongoing harm caused by a legal culture that has
priced access to the courts completely out of the reach
of ordinary Australians. The gravy train legal culture
that prevails is most dangerous when it impacts the
weakest and most vulnerable in our society. Our legal
practitioners, this barrister said, have increasingly lost
their identity as officers of the court, with all of the
obligations that entails. They are, he said, preoccupied
with commercial advancement.
Representing people before a court is so time
consuming and demanding that ordinary people can
no longer afford it. Those who need the protection
of the law the most—the poor and alienated—have
no hope of getting the considered and experienced
representation they desperately need. Ironically, and
all too frequently, litigation causes financial ruination
to the parties and creates problems which dwarf the
original dispute. The long-term harm and distress
persist long after the legal issue is resolved or
abandoned for want of resources.
Last week saw a case in point. On Wednesday I
excused myself from this place to attend the Federal
Court in Melbourne in support of a constituent.
Appearing before the court was a farmer from western
Victoria, someone I have known for many years.
His farm was bankrupted by his own law firm. This
firm had represented this individual in a family farm
partnership dispute that began in 2005. Anyone who
has worked on the land would not be unfamiliar with
the concept of a family farm partnership dispute.
Farm partnerships and farm succession planning are an
inevitable part of almost any rural operation. But in this
case the farmer in question—I will call him Murray—
has had his life destroyed by the legal firm he appointed
to protect his interests.
According to his affidavit, Murray obtained a projected
legal cost in 2005 from law firm Russell Kennedy
of approximately $30,000. He was further advised
in 2007—when the costs were already $83,990,
according to the affidavit—that the proceedings might
cost a further $100,000, including disbursements. At
the time, according to documents presented in the
court, part of Murray’s costs would be recovered—
Russell Kennedy told him. But, by the conclusion of
the matter, Murray’s fees from Russell Kennedy were
in excess of $380,000. I repeat: an initial estimation of
costs to Murray by Russell Kennedy of $30,000 had
grown to $380,000.
But that is not all. A key part of Murray’s action in
this partnership dispute was a diary. In this diary was a
record of an agreement between Murray and his father.
And this diary was lost by Russell Kennedy some
time in 2008, according to documentation attached to
Murray’s affidavit. In an earlier court action, it was
ruled the discovery of the original diary should be
made. This is stated in a letter dated 1 September 2008,
and written by Russell Kennedy principal Michael
Main. In that same letter, Mr Main said: ‘We will
continue our search for the diary, and would be grateful
if you could also check to ensure that it is still not
in your possession or has been returned to you by
mistake.’ That is right: Murray’s own law firm, it
appears, lost a crucial piece of evidence.
On the website of Russell Kennedy it says the
firm is committed to making a difference to their
clients. Certainly, Murray’s involvement with Russell
Kennedy has made a difference in his life. Because
of their incompetence, because of their extraordinary
poker-machine-style fee-accrual system and because
of their sheer legal bloody-mindedness, Russell
Kennedy decided to bankrupt a sole individual farmer.
Murray’s prospects of financial recovery, of rebuilding
his life, have been severely threatened by this action.
And how much money did Russell Kennedy get back
against their $380,000 bill? Not a cent. Murray was
already virtually destitute. It was an action based on the
strict confines of the law, as futile it was vicious. And,
while Russell Kennedy’s action may have been legal,
was it appropriate? Was it fair? Was it ethical?
Needless to say, it was the same Mr Main who appeared
at court last week in his firm’s proceedings against
my constituent. The Federal Court is, of course, only
one platform in our legal industry. There is the High
Court, the Supreme Court, the County Court and the
Magistrate’s Court. It is a labyrinth, with top lawyers
commanding fees of $10,000 a day or higher for their
Tuesday, 25 March 2014 THE SENATE 101
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services. According to research by Ibis, legal services
in Australia are a $21 billion industry, employing
nearly 100,000 people. It is a gravy train with many,
many carriages.
But for the moment I would like to drill down into
one aspect of this labyrinth, the Family Court. In many
ways, this is both the most important and the most
divisive part of our legal system. I say that because it
goes to the heart of Australian society—our families
and our children. The current state of the Family Court
points to a tragic legacy left behind by the previous
The Family Law Legislation Amendment (Family
Violence and Other Measures) Act 2011 was passed
by the Senate and came into effect in 2012. This
legislation changed the Howard government’s shared
parenting reforms via a spurious claim to provide
greater protection for children from family violence.
The objective was to improve the Family Court’s
decision making by giving priority to a child’s safety
when determining what is in their best interests. The
aim was also to make it easier for allegations of family
violence and sexual abuse to be brought before the
court. And was this successful?
Last year a retiring Family Court judge gave his view,
which was reported in the Fairfax press. Justice David
Collier had 14 years on the bench. And, keep in mind, it
is rare for Family Court judges to speak publicly about
their views. Many of us would recall the 1980 murder
of Justice David Opas and the 1984 bombings of the
Parramatta Family Court building and the homes of
two judges. The Family Court is the flashpoint for the
breakdown in family life. It is a place of heat and anger
and stress. It is a place where lives collapse and are
changed forever.
Justice Collier gives us clear insight into what is
currently forging this tragic metallurgy of Australian
families in crisis. He said unprecedented hostility
was infiltrating the Family Court, with a willingness
by parents to use their children to damage one
another. ‘Allegations of child sexual abuse are being
increasingly invented by mothers to stop fathers from
seeing their children’, Justice Collier said. I quote from
Justice Collier: ‘
When you have heard the evidence, you realise that this
is a person who’s so determined to win that he or she
will say anything. I’m satisfied that a number of people
who have appeared before me have known that it is one
of the ways of completely shutting husbands out of the
child’s life.
Justice Collier called this ‘a horrible weapon’.
The continued use of false claims is undoubtedly
fuelling the crisis of our Family Court system. Member
for Dawson George Christensen has been a strong
campaigner against our unfair family law and child
support systems
He referred to the Gillard government amendment as
a Trojan horse, loaded with consequences that would
undermine some of the most basic human rights of
children and parents, particularly fathers. This reform
to the act provided for two primary concerns for
the Family Court to consider when making parenting
orders. The first concern was the benefit to the
child of having a meaningful relationship with both
of their parents. The second concern was the need
to protect children from harm and abuse. On the
surface, both of these seem valid. However, the Gillard
government’s amended act clarified the second primary
consideration of violence over the shared parenting
provisions. Where there is a conflict between these
two primary considerations, the act now requires the
courts to give more priority to the protection of children
from harm and abuse. Is that a good idea? Of course
it is in principle. But this amendment has allowed
the introduction of many false allegations in the
court. According to many Family Court practitioners
—the judges, the clerks, the barristers and others—the
system is on the brink of collapse.
The Chief Justice of the Family Court of Australia told
ABC radio earlier this month that cuts to legal aid have
led to more and more people representing themselves.
Chief Justice Diana Bryant said that the Family Court
system was unquestionably compromised. She said
that the Family Court produces decisions that do not
stick and then you have people who are unhappy with
decisions or who take matters into their own hands.
Chief Justice Bryant said:
… there are mental health issues and the court needs
to know about those issues and to know the extent of
them, and you don’t have parties with the capacity to
bring the right evidence, then you are certainly putting
children at risk.
Aiding this breakdown of the Family Court system
was the repeal of the sections—including 60CC(3)(c)
—that were known as the friendly parent provisions.
This meant the court is no longer required to consider
the willingness and ability of a parent to facilitate a
relationship with the other parent in determining the
best interests of the child. Reforms by the Howard
government were designed to get away from the
adversarial system and allow a court to consider giving
custody to the parent who was most likely to include
the other parent in the child’s right to have a meaningful
relationship with both parents.
Tuesday, 25 March 2014 THE SENATE 102
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Additional consideration under the aforementioned
section also requires the court to consider the extent
to which each parent has fulfilled or failed to fulfil his
or her obligations to maintain the child. This includes
the extent to which the father or mother has taken
the opportunity to participate in decision making in
relation to the child, as well as spending time with
and communicating with the child. As divorce is no
fault, the reasons for failing in this area are seldom
considered, so parental alienation becomes a successful
tactic. One parent presents an accusation against the
other parent for failing to be involved. Excluding the
other parent becomes the grounds to further eject the
alienated parent.
Additionally, hearsay evidence of children is now
allowed in Family Court proceedings. The provisions
of the Evidence Act 1995 do not apply to childrelated
proceedings. The Gillard government repealed
the section which allowed the courts to order costs
against a party who has been found to have knowingly
made false allegations or statements before the court.
This means any accusations can be made in a Family
Court hearing with impunity. Frequently, we hear
unsupported accusations of abhorrent behaviour by
one parent. As I said earlier, Justice Collier called
this ‘a horrible weapon’. Lastly, we operate under a
new definition of family violence. This means family
violence now means just about anything. So it is open
slather; there are claims, counter-claims and a veritable
river of unsubstantiated accusations in Family Court
A survey of 68 New South Wales magistrates
concerning apprehended violence orders—AVOs—
found that 90 per cent agreed that some AVOs were
sought as a tactic to aid a person’s case in order to
deprive a former partner of contact with their children.
About a third of those who thought AVOs were used
tactically indicated that it did not occur often, but one
in six believed it occurred all the time. A similar survey
of 38 Queensland magistrates found that 74 per cent
agreed with the proposition that protection orders are
used in Family Court proceedings as a tactic to aid a
parent’s case and to deprive their partner of contact with
their children.
It is time to ask ourselves if we are falling short of
the ideal professed under the international Convention
on the Rights of the Child. Included in this are the
child’s right not to be separated from his or her
parents against the child’s will, the child’s right to
maintain contact with both parents if they separate,
the child’s right to be heard in any judicial and
administrative proceedings, and the child’s right to
freedom of expression. Lastly, the convention provides
that parents or legal guardians have the primary
responsibility for the child’s upbringing.
As the member for Dawson said earlier this month,
family law and child support are messy areas and there
are no winners. But under the current system some
of the losers are being turned into massive losers.
That is even to the extent of losing their children and
their lives. The current system is blatantly unfair and
negligent. It is biased against fathers. It is unfair to
children, who are the most vulnerable members of our
communities. It must be fixed, as a matter of urgency.
Senate adjourned at 22 : 51
More on the atrocities of the law firm Russell Kennedy at http://www.lawyersor graverobbers.com