Monday, July 12, 2010

Family Court Judge and bias

Story below: I've looked to the media for reports on problematic police responses to claims of domestic violence and danger to women and children. Below is a report that takes us to the other end of the family law system, the 'high' end, and shows the possibility of bias that exists in the Family Court, in cases were there are serious allegations against a parent.


Brisbane Family Court trial halted over claims of secret talks with social worker


A CHILD custody trial was aborted when a Brisbane Family Court judge disqualified himself after being accused of holding secret talks with a case social worker.

The week-long trial – which involved an allegation of sexual abuse against a young girl – ended abruptly on April 28 following an application to Justice James Barry from the child's representatives for him to stand aside on the grounds of "apprehended bias".

Family Court Chief Justice Diana Bryant has summoned Justice Barry to a formal interview in Melbourne this week and alerted Federal Attorney-General Robert McClelland to the issues.

Justice Bryant told The Courier-Mail that while she had no specific disciplinary powers, she would be spelling out to Justice Barry the "gravity of the situation for the Court and the serious inappropriateness of the conduct".

"Whilst not entirely agreeing with all that was asserted . . . to have been said between him and the (social worker), (Justice Barry) accepted that he had inappropriately discussed the contents of the family report with the (social worker)," Justice Bryant said. "The report was evidence in the proceedings."

Applying for the disqualification, barrister Jacoba Brasch – counsel in the trial for the court-appointed Independent Children's Lawyer – told Justice Barry that the social worker had informed her of the private talks which took place in the judge's chambers.

"It is . . . reported that Your Honour has said in this discussion, 'These men' – a reference to (the relative accused of sexual abuse in the case) – 'they go off half-cocked, you don't know if they are innocent or . . .'." Ms Brasch told the court.

Ms Brasch submitted that she had been told the judge had, in the conversation, said he liked the social worker's independent family report as well as commented on the mother in the dispute and her "overvaluing".

"(The social worker) . . . says Your Honour indicated you liked the report and it appears that there were various aspects of the report . . . discussed, including what was called the mother's overvaluing," Ms Brasch told the court.

"(The social worker) indicated that Your Honour had said, 'What is it with some mothers and their overvalued . . .' and I didn't catch . . . the next word."

The judge had advised the social worker "to expect to be challenged about the father's family issues" during cross-examination, Ms Brasch told the court.

She said the judge also had remarked to the social worker, regarding the child's paternal grandparents: "I've got a picture of this family. They are Presbyterian. The mother can't stand up to the father."

The trial, part-heard last October, had resumed on April 22.

Ms Brasch outlined to the court that she "ran into" the social worker near a court elevator on April 23.

"(The social worker) said to me, "The judge had spoken to me," Ms Brasch said. "His Honour (had) asked, 'You can tell by someone's reaction whether they're innocent . . .'. (The social worker) said he said, 'I'm not judge'."

On April 27, Ms Brasch told the court, she took advice from Bar Association of Queensland ethics' counsellors and then further clarified with the social worker the nature of his discussion in Justice Barry's chambers.

"(The social worker) indicated . . . he thought this discussion was in March," Ms Brasch told the court. "But it may be there was (another) discussion prior to the trial in October." Ms Brasch told the court that the social worker said he had initially "gone to Your Honour's chambers to discuss another matter".

The social worker was an in-house "family consultant" assigned by the court to impartially help resolve high-conflict custody cases. Family consultants, who may also be psychologists, are effectively witnesses.

Their written reports – which make recommendations about parenting arrangements – often play a pivotal role in evidence.

The Family Law Act grants no authority to family consultants to interact with a judge beyond providing the reports and giving oral evidence in an open court.

Ms Brasch's application was supported by the mother's barrister Jenny Hogan.

In court, Ms Hogan asked Justice Barry to disqualify himself due to a reasonable apprehension that he would not decide the case in an "impartial and unprejudiced" way.

In responding to the application and aborting the trial, Justice Barry told the court: "I am tempted to make a number of observations but have concluded so far as the discussions with (the social worker) are concerned, discretion is the better part of valour.

"I will be acceding to the application for me to step aside."

One Brisbane barrister told The Courier-Mail that any closed conference between a judge and a family consultant raised the possibility of one party influencing the other – unbeknown to the litigants and their counsel.

"How a trial should be conducted is not a matter of private briefings and discussions," the barrister said.

"It's got to be clear (to the court) what the judge is making his mind up on. The process of evidence has got to be transparent."

A top divorce lawyer said the events had rocked Queensland's family law fraternity and reflected a "mickey mouse" court.

"It's a disgrace," said the lawyer.

The abandoned trial, which entailed substantial court and legal costs, will be re-heard before another judge.

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3 comments:

  1. Justice for children is trying to get family law onto the election agenda - our media release today:

    Put children before politics –
    change family law now to protect children

    Justice for Children calls on parties and candidates to act: let’s see more leadership and less politicking. Children’s lives and safety are in your hands.

    The Family Courts Violence Review was instigated after the death of yet another child involved in the severely flawed family law process. Recent reports from University of Sydney, Monash and Melbourne confirm that many children suffer significant and lasting damage because of questionable decisions in the family court. Family law in Australia is not working for children at risk and in fact is often placing them in extremely unsafe situations. How many more children must be sacrificed in the name of ‘shared parenting”?

    Justice for Children agrees with Professor Thea Brown that the “Family law system must be overhauled to give children’s safety the highest priority” (SMH 8/7/10). According to the report Family Violence and family law in Australia, 39% to 49% of children say they live in fear as a result of family law processes. The adversarial and secretive nature of the Family Court is absolutely inimical to the best interests of the child.

    The “best interests of the child” is supposed to be the primary consideration in family law. The reality is very different. Family violence is not being dealt with in the right jurisdiction – the criminal courts - and this may lead to family court decisions placing children in serious jeopardy. They have to live in situations where they are subject to emotional, psychological and often physical and sexual abuse. Foster children get much more follow up than these children. After court rulings, they can be cruelly separated from their accustomed parent, home and extended family, without any preparation. If this is not child abuse, what is?

    Children need real, immediate and substantive protection. Many structures, jurisdictions, services and systems will have to be reformed to achieve such protection.

    Vital and urgent changes are needed NOW to end the systemic abuse of children - each passing day adds to the toll of children being damaged under the current system. Children should have the right to speak up in court and have ongoing counselling throughout.

    In too many cases, the court makes decisions without heed to the realities of the children’s future. There is no follow up to ensure the child is safe in their new home. Children can be and are denied (by the court), the right to counselling after separation. Others (for example, DoCS, schools and police) often refuse to help children involved in family court matters.

    We call on all candidates in this election to be brave enough to speak out for children. Children must be treated fairly and kept safe and all participants in the family law process should be given respect, correct and relevant information, and allowed a voice which is listened to and considered with care and compassion. Support children’s rights NOW!!

    Ariel Marguin 0411 852 452 fixingflaws@gmail.com 17 July 2010

    ReplyDelete
  2. Justice for children is trying to get family law onto the election agenda - our media release today:

    Put children before politics –
    change family law now to protect children

    Justice for Children calls on parties and candidates to act: let’s see more leadership and less politicking. Children’s lives and safety are in your hands.

    The Family Courts Violence Review was instigated after the death of yet another child involved in the severely flawed family law process. Recent reports from University of Sydney, Monash and Melbourne confirm that many children suffer significant and lasting damage because of questionable decisions in the family court. Family law in Australia is not working for children at risk and in fact is often placing them in extremely unsafe situations. How many more children must be sacrificed in the name of ‘shared parenting”?

    Justice for Children agrees with Professor Thea Brown that the “Family law system must be overhauled to give children’s safety the highest priority” (SMH 8/7/10). According to the report Family Violence and family law in Australia, 39% to 49% of children say they live in fear as a result of family law processes. The adversarial and secretive nature of the Family Court is absolutely inimical to the best interests of the child.

    The “best interests of the child” is supposed to be the primary consideration in family law. The reality is very different. Family violence is not being dealt with in the right jurisdiction – the criminal courts - and this may lead to family court decisions placing children in serious jeopardy. They have to live in situations where they are subject to emotional, psychological and often physical and sexual abuse. Foster children get much more follow up than these children. After court rulings, they can be cruelly separated from their accustomed parent, home and extended family, without any preparation. If this is not child abuse, what is?

    Children need real, immediate and substantive protection. Many structures, jurisdictions, services and systems will have to be reformed to achieve such protection.

    Vital and urgent changes are needed NOW to end the systemic abuse of children - each passing day adds to the toll of children being damaged under the current system. Children should have the right to speak up in court and have ongoing counselling throughout.

    In too many cases, the court makes decisions without heed to the realities of the children’s future. There is no follow up to ensure the child is safe in their new home. Children can be and are denied (by the court), the right to counselling after separation. Others (for example, DoCS, schools and police) often refuse to help children involved in family court matters.

    We call on all candidates in this election to be brave enough to speak out for children. Children must be treated fairly and kept safe and all participants in the family law process should be given respect, correct and relevant information, and allowed a voice which is listened to and considered with care and compassion. Support children’s rights NOW!!

    Ariel Marguin 0411 852 452 fixingflaws@gmail.com 17 July 2010

    ReplyDelete
  3. Children need real, immediate and substantive protection. Many structures, jurisdictions, services and systems will have to be reformed to achieve such protection.

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    ReplyDelete