A number of important legal test cases are under way to challenge the State and Federal Governments’ claims that they have the legal power to regulate family life – beginning with the vexed issues of family violence allegations and false allegations.
The Victorian Magistrates (Family Violence) legislation and Victorian Police and Magistrates Court actions and orders enforcing those laws are unconstitutional because they violate section 109 of the Australian Constitution. The same can be said for State family violence legislation, State Police and State Court enforcement actions in every other State and Territory.
Family violence matters are wholly and exclusively matters of federal jurisdiction for the federal courts by virtue of the federal Family Law Act 1975 and section 109 of the Australian Constitution.
We can’t have State Courts running family violence matters because this doubles up with and interferes with and works against the federal Courts applying the federal laws and federal court procedures that address family violence issues. The result is failure of due process of law, double jeopardy and other human rights violations and injustices. These are the reasons that the Constitution (generally, and section 109 specifically) outlaws State Governments from making laws that double up with federal laws and federal jurisdictional processes.
Thousands of cases of false allegations of family violence are identified every year.
These sorts of false allegations are almost the rule rather than the exception in family law matters. The legal system encourages them. They are almost guaranteed to happen whenever a marriage breaks down and custody and family assets is at stake.
In family law cases it pays to get in first and make false allegations against your former spouse before your former spouse gets in and makes false allegations against you. Perjury laws are all but ignored by the courts. Even when the judge finds one of the parties has perjured themselves making false allegations it almost never proceeds as far as the person being charged or punished. The courts almost always go along with the first to make the allegations and treats the late runner as a copy-cat just making things up. But the first set of false allegations are usually the most callous, most calculated, and most false of the two.
Usually these false allegations are made for collateral reasons including for financial gain as well as manipulation, power or revenge. The most common scenario is where the biological mother, lawyer-ed up with government funded lawyers, cuts a biological father (and therefore all of the paternal side of the children’s extended family, grandparents, aunts and uncles, cousins, half-siblings) out of any future part in the childrens lives. Ever so occasionally, it is a lawyer-ed up biological father who (because he is cashed up beyond the reach of mum’s lawyers) is able to get in first and manipulate the system the other way round so that it is the biological mother who is squeezed out. Whichever parent is squeezed out of their children’s lives, the financial and emotional pain exceeds the worst tortures that our otherwise civilised society imposes on the worst criminals.
Usually it is the lawyer-ed up mother who raises allegations of physical and sexual violence against her formerly beloved spouse, so that she can move into a relationship with a new man with a better property settlement and weekly maintenance and social welfare payments than if the children lived equally with each of the parents like should happen under International laws such as the UN Declaration of The Rights of the Child.
Perhaps the reason the law is so dysfunctional is simply that the the State and Federal Governments have a perverse economic incentive to see the biological father squeezed out. This ensures that the governments extract the most taxes from the dad, the women extracts the most maintenance and child support from the dad, and therefore the woman’s social welfare costs to the State are minimised.
Whatever the reasons the reality is that most State governments direct disproportionately more legal aid funding to women and virtually no legal aid funding to the men. And in these situations it is the lawyer-ed up party who always emerges as the winner. But not much of a winner once the huge legal costs are deducted. The only winners in the family law system are the family lawyers, never the children and never their litigant parents.
The lawyers always emerge as the biggest winners. Sometimes they are the only winners, with both the former spouses left homeless and penniless. The lawyers win from the process, and win even more with the more delays they can create instead of producing any outcomes, and the lawyers win regardless of what those final outcomes are for the parties – often the only point of any final property settlement orders being made is to settle the monies to be handed over to the lawyers (mum’s lawyers and/or reimbursing mum’s government litigation funder).
These false allegations of family violence fuel a $45 Billion dollar per annum family law industry which turns over about 100,000 more divorce couples and their 300,000 children, every year. With every court case typically stretching out over 4 to 9 years, it’s the 30,000 family lawyers who mostly reap the financial benefits of this industry with large amounts of taxpayer funds to begin with and large amounts of divorce estate assets winding up in their pockets during and at ‘conclusion’ of the hostilities.
$40 Billion, the wealth of 100,000 newly divorcing couples (about $400,000 per family) is processed through Australian family lawyers offices and courts every year. Family assets are frozen (put into the effective control of the lawyers and law courts) years ahead of any trial. The trauma of separation, and painfully protracted legal processes lead to job losses, increased financial difficulties and fuels a huge part of the banking and financial industry with repossessions of family homes and cars, which wipes off about about 50% of this wealth ($20 Billion a year). Of the remaining two quarters, Australia’s 30,000 family lawyers take a quarter ($10 Billion a year, or $333,000 per family lawyer.)
But the 30,000 family lawyers also benefit another $33,000 each as their share of $1 Billion a year in State governments legal aid funding for family lawyers, giving them a typical annual income of $366,000.
This legal aid funding is so lucrative that in the UK the family law firms are collectively suing the UK legal aid fund (the UK Legal Services Commissioner) for proposing to cut in half the number of family lawyers eligible to receive this extra government funded income.
On top of this another crop of family lawyers, the judges, registrars, associates, para-legals, administrative officers, security and other support staff of the family courts benefit from $4 Billion of taxpayer funds spent by the federal government to fund the operation and upkeep of the family courts. This equates to $40,000 for each of the 100,000 newly divorcing couples that the family court system starts processing every year.
And each of those newly divorcing couples could do with a $40,000 piece of that $4 Billion.
Firstly, more than half of all divorces are triggered by financial problems.
Secondly, at the end of the family court process, once the repossesors have taken two quarters, and the family lawyers have taken their quarter and moved on to new clients, the divorced couple is left with the stark reality of having fought over only a quarter of the assets that they held prior to their divorce.
They still have the same number of children to raise and provide for, but one or both may have lost their jobs and/or be subsisting on welfare and they now have to fund (rent) two one-parent homes instead of the one (owned) two-parent family home that they used to share before the legal proceedings. A couple that had $400,000 prior to the divorce has now become two individuals beaten up by the legal system fighting over a share of the $100,000 left over to them after two quarters of their wealth has been taken by repossesors (and pumped back into the banking and lawyer economies, but that’s another story) and a third quarter taken by the lawyers actioning the case (mum’s lawyers and her government litigation funder). Hardly surprising that both mum and dad are fighting even harder over and each wants the biggest if not the whole slice of the last quarter, which is all that the system lets them keep.
No wonder divorcees (male and female) are left so bitter and ruined from the process. No wonder divorce proceedings are so bitter and easily inflamed, and delayed, to the financial benefit of the family lawyers controlling the situation. And no wonder that whole areas of suburbs are now springing up where divorced-single parents in two’s and threes are sharing rental accommodation. This is all that they can aspire to in the new financial order once the divorce proceedings are over. And they could not have imagined it (and their lawyers would not dream of telling them to expect it) at the beginning of the divorce process.
And no wonder there are frightening statistics on depression, crime, self-harm and suicide springing up amongst those who have been through the emotional and financial effects of the divorce process either as parents or as children and have been driven from reasonable prosperity to abject poverty in the process.
For example, statistics collected by the Dads on the Air from Child Support Agency data reveal that the number of “CSA clients” (non-custodial parents who pay child support) who have died for the 3 years since the Rudd-Gillard Government was elected stands at 12,493. The CSA-Death Toll for September 2010 alone was 448 deaths: equivalent to 15 deaths every day: http://dadsontheair.squarespace.com/csa/ [Note: these statistics were kept and published monthly from late 2007 up until late 2011, when they were abandonnd, and that webpage was “data cleansed” without explanation. See here for a grim reminder of what these now cleansed statistics used to expose.]
Parting couples are temporarily not at their best emotionally and judgement-wise. They are in the early stages of grief over separating and dealing with emotional concerns over the underlying reasons for the relationship breakdown. They know very little about lawyers or how lawyers operate. They probably have not had much to do with lawyers before. They are lambs to the slaughter.
It is hard to think of a more obvious group of consumers who are vulnerable and need consumer protection laws and advocates to protect themselves, their homes, their children, even their livelihoods and their lives from circling predators. And yet, as the statistics show, the laws leave them totally exposed and vulnerable to predators. It’s as if the predators are the protected species, not the weak and the vulnerable.
Whenever allegations of family violence are made in the context of a separation or a divorce, there should really be a presumption that the allegations are false. The accuser must be required to prove them ‘beyond reasonable doubt’ with substantial independent evidence. This is consistent with the concept that an accused (ex-spouse or parent) is “innocent until proven guilty.” And the hearing should proceed like any other criminal trial of violence charges – even including a right to a jury if the accused wants one.
But in practice these basic legal safeguards, these basic human rights, are never given to a man accused of family violence.
In the lax standards of these family courts and state family violence court hearings these allegations are regularly found even against biological dads of impeccable history and character. It is as if they are presumed guilty until they prove their innocence. And no amount of evidence is enough for an accused dad to prove his innocence even if he has demonstrated 4 decades of impeccable character.
Nobody condones violence in any of its forms. Not violence against family members. Not violence against strangers. Certainly not violence where children are the victims.
But it is a sad reality that the legal system, and all of its lawyers (policemen, solicitors, barristers and judges) treat men who actually commit violence against non-family members with much more dignity and respect for due processes and human rights than they show to honest, compassionate, decent hard-working family men in distress (and, occasionally, thoroughly decent, compassionate women in distress) who are falsely accused of violence against their own family members and loved ones.
Independent Federal Candidate for Lalor
This is a very slightly re-touched version of a blog that I first published 15 October 2010. You can view (and obtain a “print-friendly” version of the original blog here.
If you “enjoyed” this piece, you may want to read some of my other writings on Australia’s crooked, corrupt, unconstitutional killer family law system, such as my blog entry for my stage play “The Crucible”. You can download an A4 Theatre Promotional Flyer here.
All of the script for “The Crucible” is taken directly off the court transcripts of a real life family law proceeding that took place in 2010 (the names of the family are changed to protect the innocent – and to comply with draconian Federal “no disclosure” suppression laws that serve to protect the “evil” more so than the innocent, by hiding the victims from public scrutiny and support).
“The Crucible” is in the process of being rewritten as a screen play, for filming and production later this year.
“Soylent Green and Gold” which demonstrates to the world the extraordinarily corrupt lengths that the Australian Federal and State Governments are prepared to go. The “unelected for life” governmen of our judicial benches are prepared to openly flout the Constitution, and their constitutional and judicial responsibilites. So are the unelected (and mysteriously often hereditary) governmen (and governwomen) on the public service benches (the executive branch of government). And so do the “elected” governmen and goverwomen on our parliamentary benches, who are at the beck and call of their bureaucratic and judicial colleagues (who keep them re-elected), forsaking their primary government function of our elected parliaments – to protect us from the tyranny of unelected bureaucracy and unelected judiciary. Why protect us when it is so much easier, lucrative, and fun to join in on the tyranny (with no electoral downside because it is all kept off the public and media agendas).
Our peak Australian governmen and governwomen are prepared to engage in and to “white card” gross violations of Australian citizen’s fundamental human rights, abandoning all pretence of constitutional, limited government or “rule of law” to prevent Australian citizens from having blatantly unconstitutional family violence legislation struck out for constitutional reasons.