Family Law: Judicial load has ‘dangerously poor’ results, says academic

University of Queensland dean of law Patrick Parkinson. Picture: James Croucher
University of Queensland dean of law Patrick Parkinson. Picture: James Croucher

Some family law judges are handling double as many cases as they should, risking “dangerously poor decision-making”, a leading family­ law academic says.

University of Queensland dean of law Patrick Parkinson said some judges’ dockets had blown out to 500-600 cases, when 300 was “probably an ­absolute maximum to be able to give much serious attention to cases early in the process”, he said.

Professor Parkinson called for more court registrars to triage family law cases, so that matters were only referred to a judge when necessary — which he said was better than judges making decisions early in a case “after only skimming the file briefly”.

“Making decisions in a rushed manner with a very limited understanding of the facts and ­issues involve­d in the case can ­result in dangerously poor decision-­making,” he said in a submission to a joint parliamentary inquiry into the family law system.

His call comes as the Australian Bar Association said it would support judges hitting parties more often with cost orders if they failed to comply with family court orders and the courts allocating more resources to enforcement proceedings.

The ABA submission said non-compliance with orders and a lack of meaningful consequences was “unfortunately, a feature of family law”.

The family law inquiry, led by Liberal MP Kevin Andrews and One Nation leader Pauline Hanson, is due to report next October.

Senator Hanson sparked outrage earlier this year when she said she had heard of too many cases in which women made up domestic violence claims to stop the other parent from seeing their children. However, the ABA said there was “no basis for asserting that the giving of untruthful evidence­ is any more common in the family law jurisdiction than in any other”.

The peak barristers’ body also defended the charging of cancellation fees when cases settled before a trial but said such fees were unusual in the family law system.

The justification when cancellation fees were sometimes charged was that barristers were “sole traders” who reserved days or weeks for hearings, and if cases settled shortly before trial they were “quite possibly left without court work” for those dates, the submission says.

The ABA said it would support barristers having to expressly bring the fees to their client’s atten­tion as part of their retainer.

The submission also said that delays and under-resourcing of the family law system were contrib­uting to “systems abuse” of children. It meant children had to be interviewed by experts multipl­e times, and the limited availability of court-funded experts meant cases were less likely to settle on terms that were consistent with their best interests.

Professor Parkinson called in his submission for the law on splitting property after divorce to be overhauled. He said the existing law was so vague and unclear it invited litigation and made resolvin­g disputes unnecessarily expensive. However, senior famil­y lawyers and “conservative” Family Court judges had been fiercely resistant to change.

“So far, their claims that no ­reform is needed have won the day; but it is time now the government forces through change with or without the support of senior members of the legal profession, many of whom have the most to gain financially from the current chaos in the law,” he said.

Professor Parkinson, a former head of the Family Law Council, said Australia had the most discretionary system of property division in the world, of which he was aware. Judgments were inconsis­tent, which made it harder for people to divide their property themselves, he said.

Earlier this year, the Australian Law Reform Commission recommended introducing a legal presumption that people had contributed equally during a relationship.

Posted in Family Law, Government Inquiries, Hot Topics | Leave a comment

Derailing Australia’s Campus Rape Panic

Published on December 21, 2019

As 2019 draws to a close, the manufactured rape crisis on Australian university campuses has suffered an important setback. Last month, a Queensland Supreme Court ruled that universities have no jurisdiction to adjudicate sexual assault. This prompted a major speech by the Federal Education Minister in which he affirmed that “If a student alleges they are the victim of a crime then our criminal justice system is the appropriate authority to deal with it.” This is hugely significant, but the media has been noticeably reluctant to report on this development.

Late last year, new regulations were introduced by a number of universities to establish committees and secretive processes to investigate and adjudicate sexual assault. These reversed the burden of proof, denied the accused normal legal rights, and required only a “balance of probabilities” to secure conviction. Many other universities have apparently made plans to proceed down the same path.

This followed a campaign orchestrated by activists who have spent the last decade successfully convincing the media that young women are unsafe on our campuses. As a result of their lobbying, the Australian Human Rights Commission spent a million dollars on a survey intended to uncover evidence of this alleged rape crisis. However, the survey found that only tiny numbers experienced sexual assault (an average of 0.8 percent over each of the two years studied), even when a broad definition of sexual assault was applied that included touching by a stranger on public transport to campus. The main finding was low-grade sexual harassment (mainly unwanted staring) which the universities then promoted as alarming levels of “sexual violence.”

Despite this setback, the higher education sector continued to toe the feminist line, setting up new measures to respond to the perceived crisis. Our university regulator—the Tertiary Education, Quality, and Standards Agency (TEQSA)—swiftly issued a “guidance note” advising universities to provide evidence of how they respond to sexual assault. This was widely interpreted by universities as a requirement to get involved in the criminal law business.

The kowtowing of key players to activist demands has been extraordinary. Prior to the recent Federal election, lobby groups almost succeeded in establishing a government task-force aimed at further bullying universities in this direction. “We were so close,” lamented Darren Brown, the former higher education officer working for the Federal Education Minister Simon Birmingham, before Birmingham’s successor shelved the proposal.

Former barrister, now Queensland Senator, Amanda Stoker used a parliamentary committee to grill TEQSA officials about the impact of that “guidance note.” A video shows bureaucrats squirming as Stoker points out that the resulting university regulations contain barely a word about ensuring proper legal rights for accused young men. The accused, Stoker explained, had no access to evidence against them, there was no effort to ensure the reliability of that evidence, no power to call evidence in their own defence, no legal representation, no presumption of innocence, and no right of appeal.

A secretive, unsupervised committee would determine guilt on the balance of probabilities with power to impose serious penalties including expulsion from the university. As Stoker observed, this means that any student so punished will have wasted money and time invested in their degrees and are likely to be excluded from chosen professions—all penalties absent from the criminal justice code.

I’ve spent the last year touring Australian university campuses speaking about what’s happening, and Stoker played a pivotal role in our first major achievement. When the riot squad had to be called to remove violent protesters blocking my audience from accessing the venue at which I was speaking at Sydney University, Stoker used a similar Senate Estimate committee to question TEQSA about Sydney University’s failure to protect free speech. This led to the Federal government setting up an inquiry which ultimately led to our universities imposing new free speech codes.

But the major breakthrough came when the Queensland Supreme Court decision in November determined that universities have no jurisdiction to adjudicate sexual assault. This landmark case involved a University of Queensland medical student who was accused of sexual assault by another student. Wendy Mulcahy, the lawyer for the accused student, took the matter to the Supreme Court arguing that UQ did not have the jurisdiction to adjudicate such matters. In her judgement, Justice Ann Lyons concluded that universities are only entitled to make decisions in sexual assault cases which have been proved in criminal court.

Dan Tehan, our Federal Education Minister, used this legal decision to instruct TEQSA that the criminal justice system, not a university disciplinary process, is the right place to deal with alleged crimes that occur on campus or in the student commun­ity. “Universities have a duty of care to their students and that ­includes ensuring processes around the enforcement of any codes of conduct are legal, fair, and transparent,” he told a TEQSA conference in Melbourne later that month.

Earlier this year, a university administrator admitted in private correspondence with a student representative that his university had assumed they might still proceed with a misconduct hearing to determine the guilt of the perpetrator even if the accused had been found not guilty in criminal court. The reason? The university had a lower standard of proof, he said. That’s the point of this whole exercise—to use “victim-centred” justice to ensure more rape convictions. Feminists are angry that juries so rarely convict young men in he-said, she-said date rape situations, and “believe-the-victim” campus investigations make securing a conviction much easier.

That was widely acknowledged as the goal in 2011 when President Obama required all publicly funded universities to establish tribunals to adjudicate rape on campus. This led to over 200 successful lawsuits against universities for failing to protect the due process rights of the accused —rights the Trump administration is now seeking to restore. Given that recent history, it is extraordinary that our higher education sector has allowed itself to be led down the same path. Universities Australia has just commissioned a new survey on sexual assault intended to cook up more impressive rape statistics after the failure of the AHRC to produce the desired results.

It’s a relief to see a few shots finally fired across the bow of this misbegotten enterprise, and hopefully there are more to come. I’m about to launch a campaign to enlist alumni from all Australian universities to send Vice Chancellors a series of questions, drawn up by the legal team assisting me, asking about these institutions’ plans regarding the direction given by the Education Minister.* (Some universities have already written to the Minister stating they are discontinuing investigations.) I’ll be continuing my campus tour to educate male students about the risks presented by this manufactured crisis. I now have a list of cases of young men who have had their lives derailed by these courts and have made YouTube videos featuring two of these students, one in Adelaide and another in Perth.

One other minor development bears mention. In my previous Quillette article I mentioned I’d made a complaint to the university about key organisers of the Sydney protest, providing hours of video evidence and numerous witnesses to show they were breaching the university’s bullying and harassment regulations. After an investigation that lasted over 8 months, the university finally took action, suspending the key organiser, Maddy Ward, for a semester. Ward is a serial troublemaker who already had a strike against her following a notorious protest at which she exposed her breasts to an anti-abortion group. Ward proudly took ownership of the protest against me but was outraged that I had succeeded in “weaponising the university codes of conduct” against her. It was the authoritarian Left that insisted on regulating behaviour on campus, but they do not, it seems, like being held to the standards they impose on others.

 

Bettina Arndt trained as a clinical psychologist before becoming one of Australia’s first sex therapists. She then had a long career as a social commentator on gender issues before devoting herself to advocating for men. A contributor to Jordan Peterson’s thinkspot, Bettina’s latest book is #MenToo. You can follow her on Twitter @thebettinaarndt

*To find out more about this campaign, email bettina@bettinaarndt.com.au

Feature image: Queensland LNP Senator Amanda Stoker speaking at the CIS, March 7, 2019.

 

 

Posted in False Allegations, Hot Topics, Men's Issues, Uncategorized, War on Men | Leave a comment