Divorce

>23 Langham Terrace UNLEY SA 5061 23 February, 1997 Ms Jennifer Boland Chairperson Family Law Council Fax: 02 92106611 Dear Chairperson, RE: Family Court Policy In the 1995/1996 Annual report of the Family Court of Australia it is indicated that representations on the policies adopted by the Family Court of Australia should be made in writing to the Family Law Council or the Court (page 38). I am not sure what ability your council has to determine the policies of the Court as on the face of the legislation this power would seem to reside exclusively with the Chief Judge of the Family Court of Australia and the role of the Family Law Council is to advise the Attorney-General. Nevertheless in accordance with the suggestion contained in the annual report I am forwarding to your council some submissions on the policy roles of the Family Court of Australia. My main submission is that the policy and administrative roles of the Family Court of Australia should be removed from the Court. The combination of these powers within the Court is likely to cause several problems. The first problem is that it gives rise to an appearance if not a reality of bias within the Court. Secondly, traditional and proper judicial reticence will lead to slow and restrained intervention and formulation of appropriate executive action. Thirdly the combination will effect a democratically unaccountable exercise of executive powers by a tenured person, in other words, a usurpation of sovereignty or a dictatorship. Appearances of bias within the Court. On the one hand the Family Court of Australia is engaging in executive policy programmes which promote divorce, the disintegration of the traditional family unit and the avoidance of the mutual legal promises which spouses make upon marriage. I note for example the zeal for the concept of "the good divorce" shown by the Principal Director of Court Counselling for which the Cheif Judge of the Family Court of Australia is legally responsible (s 38A, s38N(2)). I note also that the Family Court gives legal advice on how to obtain a divorce and promotes the availability of divorce as an alternative to adherence to matrimonial vows. (Brochure of counselling section enitled 'Separation and Divorce'). The family Court of Australia also promotes and distributes brochures which attributes violence in the home to men and assumes that men's responsibility in relation to violence is to be concerned about their own violence. There is no facility or support in the Family Court of Australia for men who are subject to violence. Neither does the Family Court promote or encourage the use of its injunctive powers for the protection of the matrimonial relationship. On the other hand the Court is given express legislative direction by s 43 of the Family Law Act to apply various principles in the exercise of its jurisdiction. Quite obviously the manifest executive aims undertaken by the Court are at odds with its judicial role. To properly adhere to its judicial role it would have to strike down its own policy. The reality is that people who wish to use the judicial process to preserve their marriage come off worse than those who seek to divorce. In particular women are the main applicants for divorce and men are the main appellants in the Family Court of Australia. The policy and judicial processes speak for themselves in being biased against men. As an example: My wife and I had a falling out. Our legal arrangements were complex and involved my mother-in-law. The main legal arguments are with my mother-in-law. My mother-in-law is extremely wealthy and has used her position to poison my relations with my wife and employers to the point where I have lost my job and my wife has filed for divorce. I opposed the divorce, as I understand the law permits. I filed notices in terrms of s 15 of the Family Law Act which would apparently require the Principal Director of Court Counselling to arrange for both my wife and I to be interviewed by a marriage counsellor with a view to either improving our relationship or reconciling. In my view counselling and its quality may have altered the fact required to be assessed in divorce matters given by s 48(3). For policy reasons, presumeably backed by the Chief Justice, the Principal Director of Court Counselling failed to take any action. She did not arrange for either me or my wife to be interviewed. I was abused by Court Counselling Staff and called a "troublemaker". I sought review in the Federal Court and the action was transferred to the Family Court. Of course the Family Court simply supported its own executive policy. Upon raising the issue of the indistinct separation of powers in the divorce proceedings It was suggested from the bench that I was just wasting the Court's time. However just to make sure that the issue was not properly canvassed the case was determined without giving notice to the Attorneys-General of the Constitutional issues and an order was made that would attempt to prevent me from seeking special leave of the High Court for a review of the case. In other words the Court is self-promoting, self-serving and will go to extraordinary lengths to prevent scrutiny. This is from a Court which must apply the legal principals of s 43 including (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life: and (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children. The judicial and executive functions are simply incompatible. Slow and inappropriate executive action the traditional role of judges and in my view the correct role of judges is to apply the law and not undertake political activity. They have tenure and are not elected. As such, good judges are not much interested in interventionist executive programmes. They couldn't care less in their jobs about the moral value of the laws that they administer their job is simply to apply the law. The other matters are for parliament and the government. However if such a role is given to a judge it may be that they will proceed more cautiously and with less intervention than an elected polictician. They do not have the political imperatives and need not be accountable and so they will not be motivated or controlled by democratic principles. In my case a policy of enforced counselling for reconciliation combined with injunctions against the interfering mother-in-law and restraining orders preventing my wife from consorting with a more wealthy suitor would have preserved the legal relationship of marriage and brought about a resumption of cohabitation. Perhaps fearing that criticism for such executive action would reflect upon the Court the Family Court of Australia does not take such a policy line. Nowhere in the Family Court information brochures is there any promotion of the preservation of marriage. Emergence of Dictatorship A incisive analysis of the situation is provided by MJ Detmold in The Australian Commonwealth (1985) The Law Book Company paragraph 13.4: Will is legitimate only because of its connection to the people. But a Court on the other hand is bound to reject a lobby and also directions from government. Now, if, as well as making judicial decisions of reason, it is to decide also by will, how could it legitimately reject either representations from the people, or directions from the representatives of the people, for the legitimacy of will depends upon its connection to the people? If the court exercised a mixed function how could the appearance of impartiality necessary for one part of it (reason) be preserved if the reception of a lobby or the acceptance of governmental direction were necessary for the other part of it (will)? Tenure is proper to judges, indeed required by the constitution; but definitely improper, because undemocratic, in functionaries of the will; it is essential to the legitimacy of the institution of legislators that they be in due course dismissible. ... An undismissible functionary of the will is a dictator. Are judges to become part-time dictators? Not only does history teach us to be vigilant about the emergence of such nidi of unaccountability within our Australian democracy, but nowhere are the matters so important as they are regarding an intrusion of the state into the most intimate relations between people as are routinely handled by the Family Court of Australia, and in this case an attempt to dissolve a legally binding marriage for life freely entered into between two consenting adults. For example the Government has no power to direct the Family Court in the Formulation and exercise of its policy. The Attorney-General has no express power to alter or modify the direction of policy in accordance with the democratic vote or will. The attorney-general cannot remove the Chief Justice if the policies do not accord with those of the Government. It is very gracious that the Court offers to accept representations on its policy as indicated in its annual report, but it is not bound to do so. For example, for some reason the Court Counselling Service runs on a psuedo social work or American psychology model with all the assumptions about individual freedoms, consent, feelings etc. It assumes that marriage is a personal relationship rather than a legal relationship and its flaw is that a personal relationship will often falter. The law of marriage is intended to butress against such personal vissitudes. The model was installed by the appointment of the relevant Court staff under the direction of the Chief Judge. I am opposed to that policy model but accept that it is still popular with those of an older generation who established the Court. The problem is made apparent if the Cheif Judge were to accept a different model for the work of the counsellors. What if they were accountants? There is no legal requirement that they be social workers. Accountants would no doubt have a model of how marriage would work and an economist would possibly have a good model of marriage for life and what that entailed and who should reconcile and who should not. Genetecists, too would have a model which they would be free to operate without their actions in conference being admissible in any Court of Law. In particular my representations are as follows: 1. Remove the powers of the Cheif Justice and Cheif Executive Officer with respect to the administrative functions of the Court and return those functions to the Attorney-General's Department. 2. Disband the Court counselling service entirely and fund community or commercially based counselling on the demonstrated ability of those counsellors or counselling services to acheive reconciliation of the parties to a marriage or agreement on terms of parenting. 3. Remove the requirement of a Family Court Judge to be a member of the Family Law Council and the power of the Attorney-General to appoint such a Judge. 4. Prevent the Family Court from promoting topical gender political theses within the precincts of the Court and from providing legal advice. 5. Have the appropriate government department promote the availability of injunctions for the preservation of the matrimonial relationship i.e injunctions restraining adultery, restraining violence, mandating cohabitation. I trust that these representations will be taken into account when formulationg the policies of the Family Court of Australia as suggested in their annual report. Yours sincerely Greg Finlayson Any comments from the usenet on the legal merits of my arguments would be appreciated

     Submitted by Greg Finlayson 23:38:52 22/3/97