Family Court Exposed: Australia's Unconstitutional Killer

By James Johnson

Sunday 8 November 2009

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A prominent Australian constitutional and civil rights lawyer has reported something that 18,000 Australian families find out first hand every week — Australia's family courts have been operating unconstitutional and illegally for at least 3 years and possibly for decades.

"Australia's family courts are not 'true courts' of the kind envisaged by the Australian Constitution." Mr Johnson says. "The Australian Constitution borrows heavily from the United States Constitution. It establishes three arms of Government, the 'parliament', 'the executive' (or public service) and 'the judiciary'. In united States Constitution the 'parliament' [Congress and the House] and the 'executive' (the President and the public service) have to be kept totally separated, as must the judiciary, as a third separate arm of government. This 'doctrine of separation of the three powers of government is the fundamental constitutional guarantee to protect we the public from tyranny, the combination of all three government powers in one."

"Australia's Constitution does not insist on the rigid separation of parliamentary and executive arms of government. In this respect we are like our British ancestry, we have a Westminster system of ministerial responsibility. The parliamentary and executive functions of government can be mixed and exercised by the one government Minister or agency." "But as a century of high court judges have always unanimously ruled, this means that the separation of judicial powers from non-judicial (parliamentary and executive) powers of government is all the more rigidly protected by Chapter III of the Australian Constitution.

"Chapter III of the Australian Constitution [like Chapter III of the US Constitution] prohibits the federal government creating a police force that tries the cases it investigates [eg the unconstitutional Inter State Commission of the early 20th century], or a commonwealth court that is both prosecutor and judge, or a commonwealth court that exercises other executive or police like investigative functions."

"And yet the Australian family law courts routinely break Chapter III of the Constitution in all three of these ways, 18,000 times every week, and have done for years." Mr Johnson says. "The first thing that happens in a custody application is the judge appoints a lawyer to his own court and orders that lawyer to engage psychologists and psychiatrists to investigate the case. The parties, mum and dad are compelled to attend these investigations and forced to answer these investigations which occur off the record, in the investigators office, outside of the control of the court. The number of civil rights violations that occur are breathtaking."

In mid 2006 the federal parliament even brazenly asserted these unconstitutional functions for the Family Law Courts by writing them into the Family Law Act (eg sections 68L and 68LA) making it black and white that the Family Law Court is operating unconstitutionally and illegally in this country."

The implications of this constitutional challenge to the Family Court are enormous. According to Mr Johnson, children, men and women directly or indirectly affected by family court orders made since 1 July 2006 and indeed for an uncertain number of earlier years are entitled to apply to the Australian High Court to have those orders quashed. They are also entitled to compensation, either from their lawyers, or from their opposing lawyers, or from the Australian Government.

"As long ago as 1997 it was stated in the Australian House of Representatives that children with a parent (usually the non-custodial dad) ex-excommunicated from their life by edict of the Family Court were (like generations of 'stolen' indigenous children) entitled to sue the Government for compensation. The only consistent outcome from the Australian family courts is that every year some $6bn to $8bn of wealth is stripped from distressed ordinary Australian families to fill the fee pockets of Australian family lawyers and those lawyers families. The only winners in family court proceedings are the lawyers, since the economic damage to their 'client' families alone is enough to destroy their client families and children's futures. Every person involved in family court proceedings in Australian since 1 July 2006 and for several years prior has a solid claim for compensation for the negligent failure of his or her family lawyer to raise this constitutional objection to adverse custody, property and costs orders made by this unconstitutional, dysfunctional Family Court.

Family law court attroticies and illegalities are not purely an Australian problem. Similar stories come from the United States family law and probate courts. While Mr Johnson would not be drawn on the question whether US family law courts are also unconstitutional he is prepared to say "Given the similarities between Chapter IIIs of both countries Constitutions and the similar stories of atrocities from the courts in both countries, it would not surprise me if the Courts there are operating unconstitutionally too."

One recent report from the United States records that at the end of October, National Domestic Violence Awareness Month, members of the men's movement group RADAR ( Respecting Accuracy in Domestic Abuse Reporting ) gathered on the steps of Congress to lobby against what they say are the suppressed truths about domestic violence: that false allegations are rampant, that a feminist-run court system fraudulently separates innocent fathers from children, that battered women's shelters are running a racket that funnels federal dollars to feminists, that domestic-violence laws give cover to cagey mail-order brides seeking Green Cards, and finally, that men are victims of an unrecognized epidemic of violence at the hands of abusive wives.

It's now reached the point," reads a statement from RADAR, "that domestic violence laws represent the largest roll-back in Americans' civil rights since the Jim Crow era!" RADAR's rhetoric may seem overblown, but lately the group and its many partners have been racking up very real accomplishments. In 2008, the organization claimed to have blocked passage of four federal domestic-violence bills, among them an expansion of the Violence Against Women Act (VAWA) to international scope and a grant to support lawyers in pro bono domestic-violence work. Members of this coalition have gotten themselves onto drafting committees for VAWA's 2011 reauthorization. Local groups in West Virginia and California have also had important successes, criminalizing false claims of domestic violence in custody cases, and winning rulings that women-only shelters are discriminatory.

Mr Johnson says that the Australian Government and legal profession could be facing tens or even hundreds of billions of dollars in compensation payments over the next few years because of constitutional and civil rights abuses of hundreds of thousands, maybe even millions, of ordinary Australian family members.

"It is important not to forget the number of suicides committed every day in Australia as a result of the distress, the sheer helplessness engendered by the Australian government abuse inflicted on ordinary Australian family members via this unconstitutional family law processing system." Mr Johnson says. There have been calls for decades for a Senate inquiry into Suicides. For Australian men, these spiked from 1975 onwards when the Family Law Act was first introduced, even though female suicide rates have been in decline since that date. Reputable joint parenting associations put the current Australian suicide rate for dads in distress ex-communicated from their children as high as 31 per week. That's 1500 Australian dad suicides every year, and more than 3000 Australian children orphaned each year. These deaths and orphanations could be prevented by a family law system that manages families in distress, to heal the distress rather than turning it into a $6bn to $8bn system for redistribution of wealth from struggling ordinary families to the pockets of wealthy family lawyers and lawyers families.

According to one mens right activist who was prepared to speak only on conditions of anonymity, "I have been quoting for years the research by Chris Cantor head of dept suicide prevention Deakin University 1999 _Baume Cantor McTaggart . 42 males each week suicide — 31 in family separation (1660 annually nearly equals the national road toll) — 21 child support payers (ie 50%) age group 24 to 34 years. Child Support Agency has the highest suicide clientel of any Australian organization (approx 800 pa). I frequently remind them and they do not liked it and I do not like CSA inspiring suicides — mainly by overcharging "self employed's" who eventually lose "everything" and take their lives. Help me giver it back to CSA and the Government by quoting this research at every opportunity. The research has been done by a reputable authority. Dr Chris Cantor was thought to have once worked for CSA but was ex Australian Institute of Family Studies to Deakin University. He obviously had a few background clues. We do not have to reinvent the wheel." Back to Mr Johnson, and the question of compensation claims arising from unconstitutional family court proceedings.

"The Australian Government and the legal profession must be looking at billions of dollars in compensation claims from children who have been orphaned as a direct and predictable outcome of a family law system hijacked by vested interests, operating unconstitutionally, and directly responsible for the deaths of more than 1500 honest, hardworking and loving Australian dads, every year. Prime Minister Kevin Rudd's headline grabbing apology to Australia's 100,000 indigenous Australians for the Government sanctioned abduction of 30,000, in the form of tangible restoration and compensation , so their economic and emotional suffering continues. How long does the Australian Government expect to be able to ignore the widespread family law court abductions, excommunications, suicides and ongoing emotional and economic harm affecting some 1 — 2.5 million of Australian's total population of 25 million?"

Article by James Johnson