Australia – Has the Family Court been unconstitutional / illegal since 2006?

Up on Ration Shed – Egroup and BLOG – with thanks to; James Johnson – DadsOntheAir and Dave Currie

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Onward – Jim


Attached is Sutton Lawyers latest media release, which hopefully will get some mainstream press coverage over the next few days. 

This is my inside information to believe that the national family court industry, worth $6bn per annum to these corrupt family lawyers, is in danger of very substantial collapse from within.   
Sutton Lawyers newest test case challenges the legitimacy of all custody orders and related orders (including costs ) made since 2006 (and maybe earlier) on constitutional law grounds.
There are 3 strands to the argument:

1. The Family Court is not a ‘true court’ within the meaning of Chapter III of the federal Constitution because it is an unlawful combination of investigator/prosecutor (via the appointment of the absurdly named “independent children’s lawyer” and all the so-called expert evidence the Court gathers via the ICL, psychologists and psychiatrists engaged by the Court).  It is the Court’s role to be impartial, not to be an investigator arm of Government. 
2. The Judge delegates too much of the ‘fact finding’ to the out-of court processes – the psychologists are not judges or lawyers, do not gather information properly according to legal rules.  The parties are even forced to give evidence to the psychologist often against their wishes.  What kind of a court is that? 
3. There were also a lot of shenanigans and professional misconduct by the Family Law Judge (a Federal Magistrate) and the Family Lawyers that give this case good grounds for appeal – even without the constitutional grounds.

Section 68LA of the Family Law Act (introduced in mid-2006) spells out that the independent children’s lawyer, the ICL, is part of the Court’s own investigative machinery – a function that cannot be combined with judicial functions.  So says Chapter III of the federal constitution and over a century of High Court Judges. 
The pre-2006 system, with a ‘childrens representative’ may well have also meant the Family Court was functioning illegally (unconstitutionally) according to the stories I have heard from that era.  But as the Family Law Act did not explicitly say that the ICL “does not represent the child and does not have to act according to the instructions of the child” [as section 68LA now does] the High Court may be less willing to strike down the Family Court decisions of that era given that the exact words of the Act were not clearly unconstitutional too.
Hopefully this is a constitutional crisis that will force our elected representatives in the parliament to do something to reform the Family Court.  Hopefully those reforms will be a positive step.  But we must be guarded against the politicians creating an even more oppressive, but alas constitutional, Family Court. 
Obviously informed public opinion and discussion is critical to positive reforms.
Please ‘enjoy’ the attached story of this test case.  ‘Enjoy’ obviously isn’t the right word.  Well I hope this story brings you some comfort. 
There are no media or publicity restrictions on the distribution of this information.
Please FORWARD this email and attachments, please post them etc these far and wide to all dads groups and journalists in your contact list, with a request that they also on-forward, post etc.  Amongst a number of initiatives:

I am looking to establish a pro- men’s right group to be known as ‘Women In Favour of Equality (WIFE organisation) – learning from how the female suffragettes achieved ‘equal political rights’ at the turn of the 1900s only because of the actions of men like HG Wells who were ‘men in favour of equality.’  So I would be especially pleased to hear from women willing to take up positive roles in WIFE Organisation…  Responses to date have been good….
A further initiative, I am keen to raise awareness of these family court human rights atrocities by publishing them.  First publishing effort, Where’s Daddy Gone? is an anthology of 20 chapters, each telling 20 stories of 20 dads in distress who have gone through the hell of the family court process – Obviously I am keen to include the Arthur-Darcy Freeman story.  Second publishing efforts will be the matching anthology from the 20 childrens’ perspectives.  And Further publishing efforts will be to tell each story more fully, with a full biography. 
I would be pleased to hear from anyone with a story to tell.  Preferably by writing to me with an outline (or more) to include in the anthology.  I’d also welcome offers of support with the collecting, editing etc.  Of course all proceeds will be put into support projects and education and law reform campaigns etc.  I’m aware that one anthology is not going to be enough – there are 100s of stories that need to be told. 

My details are included in these materials – Sutton Lawyers 1st Floor, 141 Osborne Street South Yarra Victoria 3141 (telephone 03 9279 3932 facsimile 03 9272 3955).  For security reasons (yes, some nasty people are already out to get me) this is a virtual office (the lovely ladies collect and forward my mail and collect and forward phone and fax messages).  So please be nice to them!!
The best way for anyone to contact me is by ordinary snail mail at Sutton Lawyers (as per above postal address).  For reasons I can’t really go into for security reasons, email takes much longer to reach me than good old fashioned snail mail.

Now is the time for the truth to be put out to everyone who is willing to receive it.  
Best wishes
James Johnson
Human Rights Lawyer


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