The Family Court brought contempt charges against a father hostile to its decisions but, writes Bernard Lane, could not sustain them.
[Picture of Alastair Nicholson. Caption: “Judged: Chief Justice Alastair Nicholson”]
[Picture of Terry O’Gorman. Caption: “Jury, please: Terry O’Gorman]
Half an hour after the collapse of the highly unusual contempt of court case against him, PT, a 49-year-old pensioner, was back outside the Family Court building in Melbourne, proffering pamphlets and crying out, “Read the facts about the Family Court”.
Perhaps immodestly, PT says: “My job is to close down the Family Court.” He cannot be identified because he has been a family law litigant.
PT is also keen to say what he is not. “I’m not a lunatic, I’m a loving father.”And I’m not a woman-hater – that’s how I got myself into trouble, because I love women.” There appears to be little love lost between him and the court.
PT says the judges wrongly denied him contact with two of his children, a son aged 10 and a daughter, 9. Like a few others, typically men, who have lost their cases, he began a quasi-political campaign – pamphleteering and sloganeering midway through his seven years of court proceedings. In September 1998, after two years of having PT demonstrating on its Melbourne doorstep, the court reacted.
PT found himself hauled in before a judge. He was charged with an old, rarely used form of contempt. Contempt by scandalising the court represents an attack on its authority or influence.
PT it was alleged, had handed out leaflets titled “Killers!” and “Blood on who’s [sic] hands?” accusing the court of anti-male bias and responsibility for deaths. (He says the court confused other critic’s pamphlets with his.)
He was alleged to have shouted that the judges were “shit-scared” and “terrorised and afraid of the truth”.
PT was hardly alone in assailing the court with complaints. A month later, the critic’s circle in family law drew another reaction, this time from Chief Justice Alastair Nicholson. In well-publicised remarks, the Chief Justice spoke of a “sinister element” among the critics.
“I have absolutely no doubt that there are many persons associated with men’s groups, in particular who have an agenda to change the law to the disadvantage of women,” he said. “A feature of their rhetoric is a complete absence of concern for children other than as objects of their right and entitlements. Many demonstrate, in strident terms, outside the court.”
On January 17 this year, PT’s trial began. It was to be the lead prosecution in an unprecedented series of trials for scandalising contempt. Three other critics of the court faced similar allegations.It was the Family court itself, through its marshal, that brought the charges. The penalty was a fine, prison or both, with no set maximum. The court briefed two senior barristers – Robert Redlich QC and Jeanette Morrish QC – to prosecute. PT had legal aid and a junior barrister. One of the Family Court’s judges was to put him to trial, since there is no jury in contempt cases.
Last week that judge, John Ellis, whose fairness nobody questioned, threw out the case against PT.
“I was on the street [in front of the court] within half and hour,” PT told The Australian. “I handed out about 300 posters.” Samples of these appear to be more innocuous than those that prompted the court to prosecute.
The court has not yet made available a transcript of Justice Ellis’s reasons, but the broad dilemma of contempt law is not a new one. It is supposed to protect public confidence in the courts from damaging, even violent attack.
In 1980, David Opas, a Family Court judge was shot dead. In 1984, a bomb exploded at the home of another judge, Richard Gee. That same year an explosion killed a judge’s wife, Pearl Watson.
Tony Graham QC, who recently returned to the bar after 10 years as a Family Court judge, says: “There comes a limit to what a court has to put up with. I don’t think people in the public quite realise just what the judges in the Family Court have to put up with. One fellow threatened to blow me up.”
Nobody defends violence, but the difficulty lies in drawing the line between acceptable criticism and contemptuous attack. Sometimes, irrational abuse may be better ignored.
Without knowing the details of PT’s case, Graham, for one, is not particularly concerned about critics demonstrating outside the courts. “It’s a democracy – if people want to stand around in the street handing out placards, I’m not too fussed about that.”
Sensitivity to criticism is, however, a topical theme in the Family Court. When the Chief Justice recently attacked the Australian Law Reform Commission for suggesting changes to the court workings, some judges told the law reformers privately they were “mystified at the fuss” being made in the name of the court.
PT’s former solicitor, Gabriel Kuek, of Kuek & Associates in Melbourne, thinks scandalising contempt is a charge that has passed its use-by-date. “Such charges touch on issues such as the rights of people in a free democratic society to express political opinion freely.”
Kuek represents two of the other court critics charged with scandalising contempt. It is unclear whether the court will now proceed against them.
When aspects of PT’s case when to the High Court, last year, two judges pointed out that this kind of contempt was controversial and might need to be tested against the Constitution’s guarantee of freedom of political speech. As president of the Aust5ralain Council for Civil Liberties, Terry O’Gorman is well aware of the free speech objection to contempt.
“But to protect the integrity of the court system – not to protect the sensibilities of particular judges – there really has to be a level of behaviour beyond which charges have to be brought,” he says.
Even so, O’Gorman says, contempt trials should be heard by juries, not by a judge alone, and the decision whether to bring charges should be made by an independent prosecutor, not by the court. “Judges bringing and hearing contempt cases is totally anachronistic.”