The Weekend Australian, SAT 18 NOV 2000, By Adrian McGregor

They call it “The Club“, the male-dominated legal fraternity that looks after its own. Adrian McGregor reports that, for some of those lawyers’ wives, a broken marriage can mean an unequal fight that leaves them angry, desperate and broke

SECRET MEN’S BUSINESS

Under the Family Law Act, The Australian is unable to identify the parties to these proceedings.

The relevant provisions are regarded as some of the most severely restricting laws relating to publication of court events.

The law is designed to protect the privacy of families, so that individuals going through difficult divorce, maintenance and custody cases can be free of the risk of having their private affairs publicised.

Critics, however, say it prevents public scrutiny of the family law process and therefore hampers discussion of an important political and moral issue.

CASE 1

Case 1 married a lawyer, had children and a sizeable mortgage. She filed for divorce when she discovered he had a succession of lovers. She borrowed to survive until she obtained a spousal maintenance order. Over six months, Case 1 spent $900 on solicitors’ letters to her husband, all unanswered. She twice briefed lawyers, only to discover they were acquainted with her husband. At a conciliation hearing, expected to last two hours, her husband arrived late and stretched the conference to five hours. She paid her solicitor $200 an hour while her husband was represented at reduced rates by a colleague. When Case 1’s legal fees reached $35,000, she had to represent herself in the Family Court.

CASE 2

Case 2 married a lawyer with a large practice, had children and lived in a grand house with a small mortgage. Her husband took up with a girlfriend and filed for divorce. Case 2 borrowed money for legal fees from her parents, but eventually had to buy a copy of the Family Law Act and represent herself. Legal papers from the opposing side were delivered in a timely fashion when she had a solicitor, but without a lawyer they began arriving late. When her husband did not produce financial records, she subpoenaed them from the bank, only to be presented with the bank’s huge bill for copying. Her spousal maintenance, which she had let accrue to make a new start after the settlement, eventually was awarded to her solicitors in lieu of unpaid fees.

THEY marry into society’s elite, a world of privilege, status and wealth, yet it is only if the wives of lawyers are unfortunate enough to end up in the divorce court that they discover the true power their husbands wield.

Suddenly, all the legal clout that has enriched their marriage can be turned against them in a horrendous sequence of court cases, leaving them bankrupt, broken and frustrated — and demanding changes to the Family Law Act.

The Family Court is renowned for instances of male anger and violence erupting over perceived injustices in litigation with ex-wives, but for ex-law wives the tables appear to be turned.

In dramatic cases, which The Australian can now expose, some wives have revealed their suffering at the mercy of their lawyer husbands in contested custody and property settlements. One wife of a lawyer told The Australian how she was bankrupted through a multitude of court appearances, in the Family Court and other jurisdictions. After living in an expensive home, enjoying the proceeds of a practice with a large turnover, she is penniless, renting a house with her young children.

Another law wife, also reduced to near penury, reveals that her legal fees amounted to more than five times her husband’s even though — until she ran out of cash — they were equally represented by lawyers throughout the settlement. The husband’s costs were a fraction of hers because of a practice called “mates rates”, where solicitors and barristers work for each other at discounted rates. The effect is that a lawyer can protract Family Court proceedings to the point where he can bankrupt his wife.

Lawyers refer to the vast fraternity of lawyers as the Club and nobody — Family Court lawyers, law academics or law society spokesmen — denies its practices or its unjust impact on opposing litigants. The ex-wives say they know of other divorced law wives who have suffered similarly but are afraid to come forward because they fear their former husbands will drag them back into court to challenge hard-won, traumatic settlements.

Says one wife: “I’ve attended enough damn cocktail parties with lawyers to know they all oil each other’s wheels. I always believed that, despite what I overheard in conversations about certain cases, that they acted with utmost integrity. But I look back now and see it in a very different light.

It is contemptible. My husband manipulated the system to run up my bills so I ended up with nothing from the marriage.”

Another ex-wife speaks of professional favours provided by legal colleagues to her husband during the trial.

“Solicitors are looked upon as gods within the system,” she says. “They know everyone, from the judges’ associates to the court filing clerks. If your husband is a solicitor, you have absolutely no chance against him.”

“I’d say there’s an 85 per cent chance that your own solicitor will be intimidated into doing a deal with him because your husband will threaten to run up the costs. Your husband’s solicitor might say to your solicitor, ‘Either accept what we offer or we’ll give you such a run around, we won’t give you documents and you’ll have to work so hard that in the end she won’t be able to afford to have you represent her.’”

The ex-wives, and their cases, cannot be identified under Family Court rules designed to protect the privacy of the litigants in no-fault divorce and property settlement proceedings. But the women are adamant that this secrecy also protects Family Court proceedings from open and public scrutiny, allowing exploitation to flourish.

The plight of the ex-law wives came to light following revelations in the US that judges and lawyers in New Hampshire had conspired to achieve sweetheart deals in the divorce court. The Chief Justice of the New Hampshire Supreme Court, David Brock, was impeached, but on October 10, however, the New Hampshire Senate overwhelmingly acquitted Brock. The senators concluded that although he might have shown poor judgment, he was not guilty of misconduct (full story, Page 24). Another New Hampshire judge resigned after a group of ex-wives banded together to expose the corruption.

There is no suggestion that Australian Family Court judges are in any way corrupt, but lawyers involved in property settlements or child custody hearings in Australia can employ a litany of tactics, all perfectly legal, designed to protract proceedings to magnify legal costs. The tactics range through minor breaches of court orders, vexatious applications for variance of court orders, last-minute requests for adjournments, late attendance at conferences, late service of affidavits and ignored letters.

While the lawyer-client’s costs for legal documentation and successive court appearances are minimised by colleagues representing him at substantially reduced rates, his wife is charged full fee, eventually exhausting her funds. When asked why he extended this discount to lawyer-clients, one Family Court lawyer replied, “It’s a sort of professional courtesy.”

Wives who exhaust their funds and attempt to represent themselves in court become easy prey for opposing lawyers despite the Family Court’s best endeavours to ensure equality of proceedings. At least two ex-wives who spoke to The Australian eventually had to represent themselves in court after running up legal fees of close to $35,000. One says that her crucial valuation of her husband’s legal practice was not accepted because she filed it on the day of the trial. Her husband’s lawyer complained that it might take him days to examine the valuation.

Says the wife: “Yet I had matters filed on me on the day of the trial all the time. I felt I was being penalised for being in court on my own, without the status of a lawyer.”

She says that although judges are honourable, they are only as good as the information they are given.

Michael Berry, family law lecturer at the University of Western Australia, says the problem for the Family Court is the increasing demand on its resources.

“There is such a growing number of unrepresented litigants that proceedings are protracted by people who, through no fault of their own, are unfamiliar with court process,” he says. “The court is caught between knowing how much to advise them without seeming biased in favour of unrepresented litigants. It’s a difficult tightrope. In the past 12 months the Family Court of Western Australia, under the direction of the Chief Judge Michael Holden, has produced a Litigants in Person handbook to assist unrepresented people going to trial.”

Although mates rates may well be employed in other jurisdictions, it’s impact in the Family Court is devastating given the emotions involved in dividing children and property. Berry readily concedes solicitors may offer discounted rates to colleagues.

“Where one party is able to afford decent legal representation and the other party is not, the simple fact is that you get what you pay for,” he says.“It is not uniquely related to solicitors. People who aren’t lawyers, if they’ve got friends in the profession, may get discounted rates from their associates.”

The Queensland Law Society’s family law committee chairman Peter Sheehy says of mates rates, “I’d be silly to deny it happens because it does. I haven’t seen a barrister appear for nothing but certainly there may be some concession given on the fees.”

But Sheehy says the last thing family law practitioners want is a lawyer-client who ends up in a courtroom trial. “We had one judge in Brisbane who was very critical if a family law barrister or solicitor appeared before him. His attitude was that the family lawyer should have known the matter could be better settled by pre-trial negotiation.”

The ex-wives describe the preparation for each court date as gut-wrenching.

“I was used to it in the end and wasn’t that scared,” says one wife. “But I had so many appearances I eventually bought a textbook of the Family Law Act and identified the loopholes in the act which keep you on the treadmill.

When my husband flatly declined to turn up for a compulsory conciliation conference, a registrar just said, ‘I’m not impressed’ … and that was all.”

When her husband didn’t obey court orders, she was advised to apply to the Family Court for a contravention of orders.

“But it could cost you another $5000 in legal fees just to get the other party to obey the orders,” she says.

“Why should I pay if they won’t follow orders? Solicitors just laugh at it. If parties don’t show up for compulsory conferences or don’t obey orders, they should be fined or arrested and made to pay the cost of the application. I believed every time I walked through those court doors that justice would be done but my QC said, `It won’t be. I’ve been in this game 25 years and it doesn’t work that way.’”

Last month, the Full Family Court warned that, in future, obstructive and disobedient litigants would find themselves denied the right to argue their cases. In an appeal decision on a case referred to as “T&T”, the court found that a husband had been “hell-bent on delaying the trial”.

Berry says the case indicates the court intends to take a more stringent view on those who breach case management orders. “But in order for the court to impose a fine or a term of imprisonment,” he says “the court has to be satisfied that the person deliberately contravened the order and that it was a flagrant challenge to the authority of the court. It’s not yet clear to what extent the court will link such breaches of its orders to such fines or imprisonment.”

An experienced Family Court solicitor says the contravention of orders provision does not operate as a deterrent at all.

“A breach of orders will only attract sanctions upon the application of the aggrieved party,” he says. “It takes a long time and costs a lot of money.

At worst it will put the alleged offender in a `show cause’ situation and if you can dream up a plausible explanation to offer the judge you probably won’t be dealt with at all. If you are, it will be one of those wrist-smack things like a modest fine or a good behaviour bond.”

Berry concedes the veracity of these comments.

Another regular tactic is asking for adjournments after the wife has arrived at court with her barrister — costing at least $2000 a day — and solicitor, charging $200 an hour.

Both Sheehy and Berry say in that instance, if the delay can be shown to have prejudiced the other party, the wives’ lawyers can ask the judge for costs to be reserved against those who cause the delay.

But the Family Court lawyer says in practice judges are reluctant to exercise their discretion in this way and usually send the parties away to return at a later date at their own cost.

“If judges can be persuaded to make a costs order at all, and in my experience it is rare, it is usually for a comparatively modest amount,” he says. “If you look at the ledger, it will probably have cost the wife at least $1500 for the wasted day and they’d be lucky to get $300 in costs.”

One law wife remarks: “You’ll find all our stories are the same: delayed trials, lost papers, award reassessments, all the time cranking the legal bills up and up.”

“My husband warned me when we separated that if I didn’t do as I was told I’d be sorry. But he was wrong. I’m not sorry, I’m angry.”