Darzi and Alinejad
[2018] FCCA 2962
•22 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DARZI & ALINEJAD | [2018] FCCA 2962 |
| Catchwords: FAMILY LAW – Parenting – allegations of family violence – legal aid funding – self-represented litigants – the impact of cross-examination on victims of family violence – consideration of the requirements of due process – family advocacy support service – consideration of Family Law Amendment (Family Violence and Cross-Examination Of Parties) Bill 2018 – how the court can conduct proceedings in a way that will minimise risk or damage to parties and their children. |
| Legislation: Family Law Act 1975, ss.67ZBB, 69ZN 69ZP, 69ZT, 69ZQ, 69ZX, 135, 136 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) |
| Cases cited: Hopper & Hopper [2016] FCCA 84 Other articles cited: Judge Joseph Harman, ‘The prevalence of allegations of family violence in proceedings before the Federal Circuit Court of Australia’ (2017) 7(1) Family Law Review 3-19 Justice Rares, ‘Is Access to Justice a Right or a Service?’ (Paper presented at the Access to Justice – Taking the Next Steps Symposium, Monash University, 26 June 2015) Judge Harman, ‘The Intersection of mediation confidentiality and evidence gathering in cases involving family violence’, publication pending |
| Applicant: | MR DARZI |
| Respondent: | MS ALINEJAD |
| File Number: | PAC 4176 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 22 August 2018 |
| Date of Last Submission: | 22 August 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 22 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant appearing in person |
| Solicitors for the Respondent: | Ms Morey on a duty basis | |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopooulos | |
| Solicitors for the Independent Children’s Lawyer: | John Spence & Associates |
ORDERS
By consent final parenting Orders are made in accordance with the Terms of Settlement executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.
Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
EXHIBIT A
BY CONSENT, IT IS ORDERED:
That all previous Orders be discharged.
That the Mother shall have sole parental responsibility for the children, [X] born 2008 and [Y] born 2014 (“the children”).
The Mother shall inform the Father of any proposed long term decisions that affect the children. Such notification shall be in writing not less than six weeks prior to the decision being made and the Mother shall take into consideration any views of the Father about the decision.
The children live with the Mother.
Unless as otherwise agreed between the parents in writing, the children shall spend time with the Father as follows:
(a)For 2 visits on Saturday 25 August and Saturday 8 September 2018 from 12noon to 2:00pm at the Children’s Contact Services Centre with the Paternal Grandmother to attend to reconnect with the children; following that then
(b)For 3 visits every second Sunday, being 23 September, 7 October and 21 October, from 12noon until 4:00pm supervised by the Paternal Grandmother; then
(c)For 3 visits every second Sunday, being 4 November, 18 November and 2 December, from 10:00am until 4:00pm supervised by the Paternal Grandmother; then
(d)Commencing 16 December, every second Sunday from 10:00am until 6:00pm unsupervised; then
(e)Commencing at the beginning of Term 2, 2019:
(i)Every second weekend on both Saturday and Sunday from 10:00am until 6:00pm (no overnights); and
(ii)2 additional days from 10:00am until 6:00pm during each school holiday period throughout 2019.
(f)Commencing at the beginning of Term 1, 2020:
(i)Every second weekend from 5:00pm Friday until 6:00pm Sunday; and
(ii)During Terms 1, 2 and 3 school holiday periods, for four days (three overnight periods); and
(iii)During Term 4 school holiday period, for five days (four overnight periods)
(iv)Such time during school holiday periods shall be in addition to the every second weekend time provided for in 5(f)(i).
(g)Commencing at the beginning of Term 1, 2021 and continuing into the future:
(i)Every second weekend from 5:00pm Friday until 6:00pm Sunday; and
(ii)During Terms 1, 2 and 3 school holiday periods, for four days (three overnight periods); and
(iii)During Term 4 school holiday period, for two separate block periods of six days (five overnight periods);
(iv)Such time during school holiday periods shall be in addition to the every second weekend time provided for in 5(g)(i).
For the purposes of the school holiday time in order 5 above, the Father shall nominate in writing to the Mother which days he would like to spend with the children two weeks in advance and the Mother shall confirm by way of written reply she has received the Father’s nominated days.
Commencing in 2019,and notwithstanding any other order, the children shall spend the following special occasions with the parents as follows:
(a)From 10:00am until 6:00pm on Father’s Day with the Father
(b)From 10:00am until 6:00pm on Mother’s Day with the Mother
(c)In odd numbered years, they shall spend time with the Father from 10:00am until 2:00pm on the first day of (religious activity omitted); and
(d)In even numbered years, they shall spend time with the Mother from 10:00am until 2:00pm on the first day of (religious activity omitted).
That for the purposes of changeover, unless otherwise agreed in writing, the Mother shall pick up and drop off the children to and from the Paternal Grandmother at the Paternal Grandmother’s home at Town A.
That the children shall communicate with the Father as follows:
(a)The Father shall provide to the children a suitable mobile phone for telephone communication (“the children’s mobile phone”). The Father shall give this to the Paternal Grandmother to pass over to the Mother at the first visit not facilitated at the Children’s Contact Centre.
(b)The Father is permitted to telephone the children’s mobile phone every Wednesday between 6:30pm and 7:00pm.
(c)The Mother shall be responsible for ensuring the phone has credit, is charged, switched on and that the children are available to take the Father’s telephone call every Wednesday evening.
(d)The Mother shall facilitate any additional telephone calls between the Father and the children should the children wish to communicate with the Father.
The Father shall ensure that he has appropriate car seats and restraints for the children when travelling in a vehicle with the children.
That in the event of a child suffering a medical emergency requiring urgent medical treatment while spending time or living with either parent, the parent having care of the children shall ensure that the other parent is notified urgently and:
(a)Each parent is permitted to call the other parent’s mobile phone number in case of emergency involving the children;
(b)Each parent shall notify the other of the medical practitioner and facility upon which the child/ren attends; and
(c)Both parents shall be authorised to obtain all relevant medical information, reports and other documents upon request, regardless of which parent presented with the child/ren.
Both parents are permitted to travel overseas with the children for the purposes of a holiday during the periods of time the children live with or spend time with each parents as set out in order 5 above, or as otherwise agreed between the parents in writing.
Both parents shall give all necessary consents and sign all documents necessary to obtain and renew passports for each of the children within 14 days of a request from the other parent or Passport Agency to do so.
The parent proposing to travel overseas with the children shall:
(a)Notify the other parent in writing no less than 4 weeks in advance of their intention to travel, proposed destination and travel dates; and will
(b)Provide to the other parent in writing no less than 2 weeks before travelling of the confirmed return flights for the children with flight details, itinerary for travel, addresses and contact numbers for the children whilst overseas.
The parents will communicate with each other only about the children and such communication shall be via email or sms text message, except in case of an emergency involving the child/ren in which case the parents may telephone each other’s mobile phones.
That each parent shall advise the other parent of their current email address and contact telephone numbers and shall notify the other parent of any change to their email or contact telephone numbers in writing within 48 hours of any change to such details occurring.
NOTATIONS:
A.It is the parents’ intention that for any periods of overseas travel with the children that the parents themselves shall accompany the children on such travel.
IT IS NOTED that publication of this judgment under the pseudonym Darzi & Alinejad is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4176 of 2016
| MR DARZI |
Applicant
And
| MS ALINEJAD |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to care arrangements for two young children:
[X], born 2008 (nearly 10); and,
[Y], born 2014, (4 ½).
The parties to the proceedings are the children’s parents:
Mr Darzi, their father and the Applicant; and,
Ms Alinejad, the Respondent and the children’s mother.
The children’s interests are capably represented by an Independent Children’s Lawyer and Counsel.
The matter was listed today to commence a trial of two days duration. Thankfully, although in circumstances that are worthy of some comment, the proceedings have been resolved by consensus. The parties have spent the entire day negotiating. It is now nearly 6 pm and Orders have just been made which conclude the proceedings.
During the course of the day, the parties (the mother, with the assistance of a Solicitor from the Family Advocacy Support Service, the father, without such assistance) and, no doubt, with the full intervention and at the instigation of the Independent Children’s Lawyer, have negotiated final arrangements in what is a factually complex matter.
During the time that the parties have devoted to the consensual resolution of their parenting dispute, I have had moment to reflect upon issues that arise in this case, three of which deserve some comment.
In driving to the Registry this morning, I had the great privilege of hearing the story of a woman, provided the pseudonym “Julie”.[1] “Julie” was involved in an interview with Michael Mackenzie and others, namely Gabrielle Canny, the Director of National Legal Aid, and Helen Matthews, a Solicitor from the Victorian Women’s Legal Service. The interview involved discussion of the impact of family violence upon self-represented litigants who have experienced violence, and the very great and considerable assistance such persons receive from services such as Legal Aid and Community Legal Services.
[1] ABC Radio National, ‘Family violence, image based bullying and Parkinson’s’, Life Matters, 22 August, 2018 (Michael McKenzie).
That discussion arose in the context of a Bill presently before Parliament. The Bill is intended to address and, in some circumstances, preclude, direct cross-examination of those who have experienced family violence by those who are alleged to have perpetrated that violence upon them.
I make clear, particularly for the benefit of Mr Darzi, that I do not make any finding, nor need I, that he has perpetrated family violence upon Ms Alinejad, whether in the presence of the children or otherwise. Similarly, I make clear for the benefit of Ms Alinejad that I do not reject or disbelieve her allegations. It is merely that this Court, as a Tribunal of fact and subject to the limitations identified, for example, by Finkelstein J[2], has not been required, as it were, to “get to the truth”. The allegations are clearly considered and weighed in determining that the proposed Orders are in the children’s best interests. I am satisfied that the proposed Orders will, as the legislative provisions and especially section 67ZBB of the Family Law Act 1975 require, provide adequate and sufficient protection for all concerned.
[2] Judge Raymond Finkelstein, ‘The Adversarial System and the Search for Truth’ (2011) 37(1) Monash University Law Review 135-144.
The gravamen of the discussion on Radio National this morning was the great stress and difficulty that was experienced by “Julie” when confronted with the prospect, without or perhaps even with legal assistance, of being directly cross-examined by her tormentor. In this case, had the matter proceeded to hearing, that would have been a reality for Ms Alinejad, (again, without making any finding accepting her allegations, but certainly not rejecting them).
The story told by “Julie” was all the more concerning, particularly in light of that which fell from the lawyers involved in the discussion, when regard is had to the unmeasurable number of litigants who might, when faced with such circumstances, either negotiate an arrangement for their children which they feel is unsafe (or not as safe as it might be), or who may have simply withdrawn entirely from proceedings. The frequency with which this may occur cannot, of course, be measured, at least not quantitatively. But those issues are and remain a real concern in this case.
These proceedings have been on foot since September 2016, a period only a few weeks short of two years. That is an inordinate length of time for this family. I accept that it would be so for each of the parties and for their children. Each would have experienced significant stress and anxiety during the currency of the proceedings. That is clear and apparent from the Family Report prepared in these proceedings, especially as regards these children. These children have clearly been impacted by, not only that which each of the parents allege with respect to the other and past events, but that which has occurred during the currency of these proceedings.
The intention of the above Bill, as discussed in detail by the report of the Legal and Constitutional Affairs Legislation Committee,[3] is to provide legal representation, in certain circumstances, in cases involving family violence allegations, so as to ensure that self-represented victims are not cross-examined by self-represented perpetrators of family violence.[4] That is a valuable and laudable goal.
[3] Legal and Constitution Affairs Legislation Committee, The Senate, Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 [Provisions] (2018).
[4] As I commented in Hopper & Hopper [2016] FCCA 84 “the use of such terminology as “perpetrator” and “victim” has real potential to be unhelpfully seen and adopted as “labelling” of each of these parents in a fashion that may impede their future parenting or parenting relationship or the provision and benefit of therapeutic services”. To do so can also be demeaning of and deny agency to those who have experienced family violence, rendering them, in patriarchal fashion, powerless.
It is also to be observed that this Bill, speaks to and augments a number of powers which the Court already possesses.[5] At times, it is difficult to use those powers, due to a lack of resources and infrastructure. The Court’s existing powers permit, for example, witnesses to attend by video from a different part of the Registry. However, the video equipment, within this Registry at least, regularly fails and does not permit this to occur. If two Court rooms are to be used, then staff for each must be found and that is not always possible with present staffing caps.
[5] See for example sections 69ZN, 69ZP, 69ZQ, 69ZX and 67ZBB of the Family Law Act 1975.
The Court has an obligation, pursuant to section 69ZN of the Act, to conduct proceedings in a way that will minimise risk or damage to parties and their children by ensuring that children and their parents are not subjected to or exposed to abuse, neglect or family violence. That duty, combined with the requirement that the Court “actively direct, control and manage proceedings”, permits the Court to take steps which are routinely taken in this Court.[6] Steps are routinely taken by this Court to reduce distress to those who allege an experience of family violence. This includes a common practice of ensuring that cross-examination is filtered through the Bench. The Court cannot appoint Attorneys to represent parties. There is simply no power to do so, nor a pool of persons from whom such Attorneys might be drawn. The steps sensitively taken by the Judges of this Court are the best that can be done whilst affording due process, especially when in combination with more practical steps, such as use of video technology.[7]
[6] Notwithstanding comments made by some during the course of recent Senate Committee hearings as to the expertise and qualification of Judges of this Court as regards the address of family violence.
[7] Subject to the above comments.
This leads to the first matter that must be observed. I am conscious that the mother, through the termination of her Legal Aid funding, (a matter that I will return to, but which I make clear, from the outset, is not intended, in any fashion, as a criticism of the Legal Aid Commission), was left to conduct these proceedings by herself. Appropriately and with the assistance of her former legal representative, the mother filed, shortly before the hearing, an Application in a Case by which she sought to vacate the trial. It was not possible for that Application to be listed earlier than the first day of hearing. Notice was clearly given to all that the Application in a Case[8] would be heard and determined prior to any other step being taken in the proceedings.
[8] Filed 10 August 2018 or a little less than two weeks prior to hearing.
The adjournment Application arose as a consequence of termination of the mother’s grant of Legal Aid. When the matter was first called, discussion occurred between the Bench and a Solicitor from the Family Advocacy Support Service, whom the mother had approached upon her arrival at Court and whose assistance she has thankfully had throughout the day, including well after Court sitting hours.
It must be observed that Ms Alinejad is from a non-English speaking background. That is not to suggest that Ms Alinejad is not literate in the English language and is not intelligent. Indeed, Ms Alinejad is a (occupation omitted). However, whilst there is dramatic and significant factual controversy in these proceedings, one issue that is not the subject of controversy is the reality, to put it perhaps in its most euphemistic sense and without intending any criticism of or embarrassment to Ms Alinejad, that she is a person of nervous disposition. That is putting it euphemistically, as the evidence of each of the parents indicates that at times past, particularly prior to the final termination of the parties’ relationship, the timing and circumstances of that separation being the subject of factual dispute, that Ms Alinejad has experienced what are described in the evidence as panic or anxiety attacks of such magnitude as to render her, at least temporarily, incapable of providing for her own needs, including, again without intending any embarrassment to this good woman, incontinence, shaking and similarly debilitating behaviours.
In those circumstances, one must have some concern as to the capacity of Ms Alinejad to have conducted this litigation herself, let alone embarking upon cross-examination of the person whom she accuses of perpetrating violence against her and the children or being cross-examined by that same person. That is the context in which these remarks are addressed.
Firstly, I must acknowledge the extent of assistance that has been provided to Ms Alinejad by the Family Advocacy Support Service. The Solicitor from that service, Ms Morey, is well known to me from many past years of professional interaction. Ms Morey is a highly competent and experienced practitioner, especially so when dealing with cases involving allegations of family violence. Indeed, Ms Morey has lectured at tertiary level in family law as well as having many years of practical experience in representing women who have experienced family violence. It is a wonderful thing that litigants, in such stressful circumstances as Ms Alinejad’s, can have such valuable assistance.
The Family Advocacy Support Service, a fairly recent innovation, is distinguished from other duty solicitor services at this Court. The Family Advocacy Support Service is one of three duty services at this Registry.[9] The Family Advocacy Support Service has a holistic approach towards support and assistance to those who have experienced or been impacted by family violence. This allows the service to provide assistance beyond legal advice and representation at Court on any given day, (as valuable as that is), so as to include referral not only to legal services, but other services and supports provided by engagement and secondment of DVAS workers.
[9] The Legal Aid Commission also provides an Early Intervention Unit and this Registry has a dedicated Aboriginal Legal Service duty solicitor for the assistance of Aboriginal and Torres Strait Islander parents.
The three duty legal services at the Parramatta Registry are fundamentally important to the business of this Court. In 52 per cent of cases before this Registry, one or both parties is legally aided.[10] In 22 per cent of cases that come before this Registry, a victim of family violence is represented by one of the three duty solicitor services.[11] Without the assistances of the duty solicitor services, two fundamentally important things would occur.
[10] Judge Harman, ‘The Intersection of mediation confidentiality and evidence gathering in cases involving family violence’, publication pending.
[11] Ibid.
Firstly, the effective conduct of the Court’s business would be rendered nearly impossible. To the extent that the Court’s business is defined by reference to access to and provision of justice, that would certainly be so. There is too much of a focus, it would appear, upon swift disposal of proceedings. The Court’s business is the administration of justice. That sometimes takes time. It certainly takes resources. It takes time, patience and understanding to get to the truth, to understand the experience of a litigant and their children. It takes access to probative evidence and that evidence being properly presented and tested. That process is greatly aided by the services I have identified and, in particular, the individual Solicitor identified.
The Family Advocacy Support Service is not intended to conduct final hearings on short notice. It was made clear by the Solicitor appearing, and appropriately so, that, were the Application for adjournment refused, Ms Alinejad would, regrettably, be left to conduct the proceedings on her own behalf. That could not be a criticism. It is the only sensible and appropriate course that could have been taken. I am conscious, however, that the spectre of the matter proceeding would have weighed upon Ms Alinejad’s mind throughout the day, although I have no concern that this weight would have impacted upon or have influenced Ms Alinejad’s approach towards negotiation or agreement, such is the quality of the advice, representation and support provided to her by Ms Morey and the Family Advocacy Support Service. It is, however, concerning that any litigant would spend a day at this Court – a full day now from 9 am until 6 pm – with that worry at the back of their mind. It does not do justice to Ms Alinejad. It does not bode well for the perception of justice that Ms Alinejad would have left this Court with had things turned out differently.
Secondly, I am conscious that the very circumstance that has given rise to the extraordinary intervention of the Family Advocacy Support Service, is the termination of the mother’s Legal Aid funding, a decision that the mother was advised of on or about 27 July 2018. Until that point, the mother had been represented by a private Solicitor funded by the Legal Aid Commission since, at least, October 2016. That loss of continuity in representation must have caused some real concern to Ms Alinejad. One can only imagine the degree of stress and anxiety she has experienced in the last two weeks. That is not to ignore the fact that Mr Darzi is also self-represented. However, he has had that stress and anxiety throughout the proceedings, perhaps cold comfort, but something that he has had significant time to adjust to. He has known, from the outset, that he would be addressing this hearing on his own behalf.
It is perhaps ironic in those circumstances, noting the entirely appropriate intent to address self-represented parties engaging in cross-examination of each other in cases involving violence, that this circumstance has arisen at all.
As I have made clear from the outset, I am not critical of the Legal Aid Commission. Legal Aid Commissions apply the tests and make the decisions that are made as a matter of necessity. The Benthamist utilitarian concept of “the greatest good for the greatest number” cannot be achieved universally or as broadly as might be desired. The Legal Aid Commission cannot provide funding for all litigants who would otherwise fall within their means, assets and merit tests when funding is finite.[12] They must tailor those tests by reference to that which they can budget to achieve. It would be a false exercise to seek to expand representation when the budget simply could not meet it.
[12] The Law Council’s “Justice Project Report” suggests that whilst 14% of Australians live at or below the poverty line, only 8% qualify for legal aid assistance.
That is concerning bearing in mind, for example, that over the last few years numerous reports have made clear that a significant injection of funding, $190 million or more, would be required by Legal Aid Commissions to ensure that matters could be properly addressed or service maintained at appropriate levels.[13] The space is, of course, full of conversation. COAG meetings convene regularly to discuss how Courts and other agencies might better meet and address issues of family violence, information sharing and work towards better protection of those who have experienced family violence, especially children. In other areas and in other jurisdictions, funding has been perhaps more abundant. Even prior to delivery of the Victorian Royal Commission into Family Violence Report,[14] a commitment approaching $2 billion had been made to implement as then unknown recommendations. That commitment is to be congratulated, particularly flowing, as it did, from the Batty inquest conducted by Victorian Coroner Judge Gray[15] into the regrettable and tragic death of young Luke Batty. As was commented by Judge Gray, delay increases risk[16] (as does a lack of information sharing) whilst representation and support accentuate the likelihood of disclosure and participation. And yet, some years on, there is still delay imposed through an inability to bring family law cases on as quickly as might be appropriate in some circumstances. As Professor Parkinson has commented recently “when everything is urgent nothing is urgent”.[17] This is especially so when it is acknowledged that 80 per cent of parenting cases involve allegations of family violence.[18]
[13] PricewaterhouseCoopers, ‘Legal Aid funding – Current challenges and the opportunities of cooperative federalism’ (Final report, PwC, December 2009), accessible at <
[14] Victoria, Royal Commission into Family Violence (2016), accessible at < Gray, Inquest into the Death of Luke Geoffrey Batty (2015) Coroners Court of Victoria < Ibid, paragraph 124.
[17] Deborah Cornwall, ‘Family Law Act leaves children vulnerable to violence, NSW Police Minister says’, The Australian (online), 11 July 2018 < Ray Kaspiew at al, ‘Evaluation of the 2006 family law reforms’ (Report, Australian Institute of Family Studies, December 2009); Judge Joseph Harman, ‘The prevalence of allegations of family violence in proceedings before the Federal Circuit Court of Australia’ (2017) 7(1) Family Law Review 3-19; David Weber, National Legal Aid calls for more funding after new figures reveal domestic violence a factor in 79pc of family law cases (18 April 2016) ABC News < and Dr Rachel Carson, ‘Direct Cross Examination in Family Law Matters: A New Approach?’ (Paper presented at AIFS Biannual Conference, Melbourne, 26 July 2018).
Even so, expeditious hearing is not the answer to all issues. The maxim “justice delayed is justice denied” is not a complete recitation of that which is required to afford justice. It is simplistic and misleading to focus on delay as the sole determinant of justice. The important word in the maxim is “justice”. Justice is what Courts administer and dispense. Cases must be heard in a timely fashion. Timeliness might and should be defined as hearing a case within a time and using the time that is necessary for justice to be done, rather than simply hearing a case as quickly as possible with as few resource implications as possible. The best interests of children, as the paramount consideration, demands that it be so.
This case, no doubt, would have completed within the time allocated to it especially if both parties were self-represented. That is so as, without intending any disrespect to either, neither has the vaguest idea how to conduct a case. The adversarial system, a model of justice which I hold in great regard, is the product of its constituent components. As the American commentator, Harry Browne, observed “A fair trial is one in which the rules of evidence are honoured, the accused has competent counsel, and the judge enforces the proper courtroom procedures - a trial in which every assumption can be challenged”. In this case, I have no doubt that this would not have occurred at least as regards competent representation and every assumption being challenged.
Mr Darzi, with the greatest of respect to him, would not have conducted competent cross-examination with respect to his interests whether filtered through the Bench, the Independent Children’s Lawyer or otherwise. It is simply not his job. Mr Darzi is a (occupation omitted). (Details of occupation omitted.). But that is what Mr Darzi does - he does not read, study or practise law. He does not comprehend the codified version of the rules of evidence nor the common law rules. Section 69ZT of the Act might be suggested to assist, causing certain portions of those rules to not apply. That might well assist Mr Darzi in not having to face objection to questions that are not framed correctly. It does not, however, assist this Court. Courts make decisions based on evidence. Evidence must be probative. Evidence must be reliable. Second and third-hand hearsay is nothing more than gossip, rumour and innuendo. It does not assist in decision-making at all. Thus, Parliament has, with some wisdom, included section 69ZT(2) of the Act, providing that the material admitted as a consequence of non-application of the rules of evidence is afforded the weight if any (emphasis added) that is warranted. The test must surely be the probative value of that evidence and its potential to cause disadvantage, indeed wreak havoc. Thus, sections 135 and 136 of the Act allow further filtering of that evidence to limit its use or to exclude it.
Ms Alinejad is a (occupation omitted). No doubt, she is an excellent (occupation omitted). (Details of occupation omitted). There is no reason to doubt that it is so. But Ms Alinejad is a (occupation omitted), not a lawyer, and to thrust her into the position of conducting a case in which the subject matter of the proceedings is her welfare, her protection, her safety as well as that of the children, is an onerous and unreasonable burden. That is all the more so in light of what is now known with respect to neuroscience and neurobiology. The stress that each of these parents would feel coming into this hearing, let alone within the hearing, would dramatically impact their capacity to function intellectually. It would impact their memory. It would impact their ability to think clearly and coherently whilst on their feet, particularly in circumstances where there are very live and very significant allegations of family violence on foot between them.
In this case, the allegations of family violence have not required prosecution or investigation to the point of finding by the Court. I am satisfied that this approach is appropriate as the Orders that have been negotiated, with great time and attention to detail, will ensure the safety of the children and the mother. Even if the allegations are true, there are adequate safeguards and protections. The allegations in this case are significant. The allegations would fall within that which was described in the categorisation provided in the Maloney Report[19] as Category C allegations – serious allegations having the potential to lead to real harm, physical or emotional.
[19] Lawrie Moloney et al, ‘Allegations of family violence and child abuse in family law children's proceedings: a pre-reform exploratory study’ (Research Report No 15, Australian Institute of Family Studies, May 2007).
Again, I do not criticise the decision that was made by the Commission. The Commission must do what it can with its resources and the decision that is made is entirely a matter for those seized with responsibility for the decision and with far greater information available than I have. Indeed, it would be inappropriate to intrude into or seek to ascertain the basis for the decision. It is not the Court’s business and the information is, in all probability, covered by legal professional privilege. It is a decision, however, that arises not through a lack of regard, empathy or desire to provide service but necessitated by cold, hard economic reality.
The Legal Aid Commission cannot afford to fund every case. Indeed, that reality was a significant part of the discussion of the Legal and Constitutional Affairs report recommending additional funding for Legal Aid Commissions if the legislation with respect to cross-examination is to pass. Someone must do that legal work and unless there is funding for it there will be no one.
In 2016, KPMG had estimated, although I am loathe to even venture down the path of economic rationalism regarding the “cost” of family violence, that the cost to the community of family violence was, for the 2015/16 financial year, to be in excess of $22 billion.[20] If one compares that to the cost of representation of Ms Alinejad in this case, it is readily apparent that the cost of Ms Alinejad’s representation is but a drop in a bucket, and a very large bucket at that. The reality of funding for those who might be critical of lawyers as being, as often described, “fat cats”, reaping unfair reward at public expense, is modest. The solicitor retained in the matter would have received a grant of aid of $650 per day or thereabouts. For two days work that would be $1300.
[20] KPMG, ‘The cost of violence against women and their children in Australia’ (Final Report, KPMG, May 2016), accessible at < type="1">
Counsel would have received modest payment – a little over a thousand dollars for the first day, a little under a thousand dollars for the second. The total cost or providing representation to this woman, an alleged victim of significant coercive and controlling family violence, would have been $3,500 or thereabouts.
If one extrapolates from the AIFS Scoping Study[21] in relation to direct cross-examination, (estimating that there might be something around 130 cases per year in which both parties are self-represented and which involve direct cross examination with respect to family violence) and if one assumed that all such hearings were two day fixtures – of course, they may not be – then there would be a cost, even if both parties were provided with representation, of less than a million dollars.[22] That is a tiny sum of money in the overall expenditure that is undertaken in addressing family violence, particularly when compared to the cost as KPMG has sought to calculate it - well in excess of $22 billion.
[21] Rachel Carson et al, ‘Direct cross‑examination in family law matters - Incidence and context of direct cross‑examination involving self-represented litigants’ (Report, Australian Institute of Family Studies, June 2018).
[22] 130 x 2 x $3,500 = $910,000.
I have taken the time to highlight these issues as they will continue to occur. They occur every week, if not every day, in this Court. Family violence is a significant element of this Court’s work and, I have no doubt, the Family Court’s work. In approximately 80 per cent of cases before this Court, allegations of family violence are made. That is not anecdotal but based on sound data and research undertaken by people who do the work in the jurisdiction. It means that for the Judges of this Court, they must, on a day-in day-out basis, look into the face of litigants and tell them that their affairs, their anxieties, their fears, their concerns that they will come to harm, indeed their lives, will need to be put on hold for another two years while we can find the resources necessary to hear their case. It is a very simple matter that so much water will pass through an opening within any particular time. There are mathematical formula to calculate the flow. As flow increases, so does pressure, and that pressure can produce calamitous results. Similarly, one can endeavour to increase the speed of work flow through a Court process and thus produce more “disposals” but we need to consider what risks are involved in doing so.
With workloads that do not permit proper triage of a case, it is possible that things will be missed. Faster is not always better. In cases involving allegations of family violence and allegations of risk, thorough is certainly to be preferred to quick. Just is always to be preferred to quick. Rigorous is always to be preferred to quick. To achieve both thorough and quick is resource intensive.
This case has taken the time it has taken through no fault of the parties. There was initially a delay as Ms Alinejad’s whereabouts were not known, or at least so it was alleged by Mr Darzi, (although that, again, is an issue in dispute between the parties). However, both parties have been engaged in the proceedings for well over 20 months. There has been no real delay by either party in this case. The Independent Children’s Lawyer has done everything that one would expect and as was required of them and to a very high standard, including the amount of time that has been devoted, today, in producing an outcome that is of benefit to these children.
The parties cannot, in this case, although, sadly, it does not apply to all cases, be criticised for delay. They have done what is necessary, including Mr Darzi, self-represented, but having put on his material, attended at all times, dates and places necessary for Family Report interviews or Court events, and having conducted his business with aplomb. All that has held up the matter has been a lack of resources, although thankfully the resources in this Registry have now returned to their 2012 levels.
I am particularly concerned, and have raised these comments for the benefit of these parties, perhaps more so Ms Alinejad than Mr Darzi, as I well understand and empathise with the stress she has experienced in the last fortnight, that the truth could not have been gotten to and justice done, with both parties self-represented. For Ms Alinejad to have come to this Court today (and whilst I have not enquired, I accept she may well have contemplated whether she even would), must have been a highly stressful thing for her. That must have impacted upon these children. That is clear, because the Family Report, is very clear that these children enjoy an extraordinarily close relationship with their mother (and a good and developing relationship with their father through a fairly frugal practice of time during the currency of these proceedings, but which will now accelerate at a pace).
These concerns, these negative outcomes, these stresses for the parties and their children, could have all been avoidable had $3,500 or thereabouts been available to guarantee Ms Alinejad’s representation. Thankfully, the silver lining in this particular cloud is that a Solicitor selflessly, accepting terms and conditions far less than would be received in private practice, devotes herself to the assistance of women like Ms Alinejad. To be clear, in the majority of cases involving family violence before this Court, indeed, empirically proven as 95 per cent,[23] the victim of violence is female. But for the assistance lent today by Ms Morey, her commitment, indeed, the discharge of the highest standards and duties of the office of the legal practitioner – this case may well have been far more disastrous.
[23] See footnote 10.
Indeed, disadvantage must have flown. Either the matter would have proceeded and both parties left to do their best to conduct a Court case in an adversarial system which, even if informal, cannot waive the requirements of due process, or the case adjourned with further delay and further disadvantages regards the children’s developing and practised relationship with their father.
My admiration for Ms Morey and the assistance she has provided – and I readily extend that to Ms Court, the Independent Children’s Lawyer, and Mr Ladopoulos, Counsel retained by the Independent Children’s Lawyer – is enormous. I am conscious that, all too often, Judgments I have delivered critical of legal practitioners receive attention. I make clear, they are specific to the circumstances in which they are delivered and the individuals involved. The legal profession serves a proud and significant role not only for individual litigants but for society. Such practitioners work for modest pay, not dramatically above average weekly earnings and, in the case of private solicitors undertaking legally aided work, at a rate of no more than $150 per hour,[24] whereas colleagues on private retainer are being paid two, three or four times as much.
[24] I have expressed this as “no more than $150 per hour” as the Legal Aid Commission fixes lump sum fees calculated by reference to an hourly rate and which means that the more work that is done the less per hour the practitioner is paid. The costs of running a legal practice generally exceeds $150 per hour.
Indeed, the Court, as the judicial branch of government, as it is described eloquently, for example, in Rares J in his paper “Is Access to Justice a Right or a Service”,[25] could not function without competent representatives coming before it. Not all representatives are, but in this case, the legal representatives are competent and at an extraordinarily high standard. That has a flow on, not only for those who are represented or whose interests are represented, but, in this case, Mr Darzi. Without competent, diligent and appropriate representation, the outcome negotiated would not have been achieved, I have no doubt.
[25]Justice Rares, ‘Is Access to Justice a Right or a Service?’ (Paper presented at the Access to Justice – Taking the Next Steps Symposium, Monash University, 26 June 2015)
There is also a flow on to the community. It is a flow on all too often overlooked, forgotten, or found inconvenient. Things cost money. No one would expect any person to work for free.[26] Should they choose to do so, it is a matter for them. However, all too often it is expected that legal practitioners will show up and do their job of work – a highly skilled job of work – without any compensation to reflect that skill or that commitment. One would not expect, for example, Jeremy Cameron to run onto Spotless Stadium on a pro bono basis purely because people wanted to see him or because the team needed him. Nor should they expect it. I do not doubt his commitment to his team, the sport and his community would drive him to do so. However, it would not be appropriate for it to be expected or compelled, and yet that is what is expected and compelled of the small and dwindling group of legal practitioners who undertake legally-aided work on a daily basis. The rate of remuneration has increased by an insignificant $20 over the space of some 25 years, not because of mean spiritedness or lack of appreciation of skill but purely as money is tight and it cannot be so. What is paid to legally aided Solicitors is not a significant amount, especially for the skill involved and taking into account the costs of establishing and running a practice. The remuneration paid would not cover the overheads of opening the legal practice’s doors to the public before even any work is performed and further expense undertaken.
[26] The reality is that, all too often, they do, such as unpaid apprenticeships.
One would hope that informed public debate might one day occur with respect to these issues and so that, as Forrest J discussed in Gordon & Gordon [2015] FamCA 616, the child’s best interests can be seen to be and genuinely treated as paramount for all purposes. Decisions as funding and service provision can be seen as a function of the paramountcy of the child’s best interests. If we are to genuinely hold the child’s best interests to be paramount – it is, after all, the fundamental touchstone of the International Convention of the Rights of the Child[27], to which Australia is a signatory, and that document incorporated in its totality into the Family Law Act 1975 as objects of the Act - then we must undertake what Clare Huntington has described in her work[28] as structural Family Law legislation, (i.e., laws that put into place practices, procedures and structures that permit the child’s best interests to be not only discussed as paramount, but actively pursued as paramount).
[27] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
[28] Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014).
Had this case not settled, there was the potential for great injustice, not through any decision of the Legal Aid Commission. Funding decisions are foisted upon the Commission by reality and are no doubt made in difficult circumstances for which I have the greatest of empathy. They resonate with this Court, as they are similar to the decisions this Court makes on a daily basis in deciding which of three urgent cases might proceed when two others will inevitably be adjourned.
The great tragedy that would have arisen would have been a complete lack of focus upon the children’s best interests – indeed, an inability to even begin to comprehend them – if Mr Darzi and Ms Alinejad had each been left self-represented, cross-examining each other in the most stressful of circumstances and flowing therefrom disadvantage not only to these children, but the community at large, the very structure of the rule of law within our democratic society that we hold so dear. Thankfully, through the efforts of three committed legal practitioners and their devotion to task, their embrace of their role and duties as fundamentally committed to the rule of law and the administration of justice, that disaster has been averted, in this case, for today. No doubt tomorrow will bring another challenge.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 19 October 2018
Productivity Commission, ‘Access to Justice Arrangements’ (Inquiry Report No. 72, Productivity Commission, 2014), accessible at < Neal SC, Federal budget must increase Legal Aid funding (4 May 2018) Law Council of Australia <Key Legal Topics
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Family Law
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