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Family Court boss Diana Bryant sides with mothers' rights activists

Diana Bryant joins feminists in using "child protection" as a cover to separate children from their fathers

Diana Bryant is following in the footsteps of her predecessor, Alastair Nicholson, as Family Court boss, by siding with mothers, mothers' rights activists, feminists and misandrists against fathers and children.  Read about her support for them just days before a hate-filled, anti-father, multi-city campaign against separated fathers (complete with children holding anti-father placards and one woman with a sign reading "All men are bad").

Her use of "child protection" as a concern mirrors the use of that term by anti-father mothers' activists and feminists.  It is a typically false concern, cynically manipulated and used, along with selective examples (which ignore female examples of abusive and violent mothers), to paint all fathers as bad and dangerous.  In such an environment all it takes is a mother's word to exclude the father and the court rolls over and gives her what she wants.  Sadly, in many situations, fathers are the protective parents and their removal is not in the best interests of the children.  With dads removed these children are open prey to abuse from their mothers and their multiple partners.

Sunday Herald Sun (Melbourne)
3 May 2009

The Chief Justice of the Family Court has a battle on her hands
By Laurie Nowell

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Diana Bryant, Family Court Boss
Peace-maker: Chief Justice Diana Bryant is admired
among her colleagues for her conciliatory manner.

Chief Justice Diana Bryant is a judge caught in a crossfire.

The battleground is not the sordid, blood-soaked trial of a gangland criminal. It is the far more thorny, emotive and mercurial landscape of family law.

Chief Justice Bryant, Australia's top Family Court judge, has found herself in the middle of a civil war between community groups over changes to the Family Law Act.

A new campaign kicking off Sunday seeks to overturn amendments to the Act that have established the principle of "shared parenting" and effectively given fathers a better chance of having greater access to their children in custody disputes.

But fathers' groups are adamant the changes are for the better and should stay. They say they will oppose the campaign "tooth and nail".

For both sides, the battle is emotional and personal and could easily descend into acrimony.

And, as in all emotional exchanges, sometimes fact, myth and assumption become blurred in the haze of propaganda and spin.

Chief Justice Bryant stands as an honest broker in the middle of the melee, with an armoury of case law, statistics and reason.

She said there was a "tension" between what the Family Law Act described as "the benefit to the child of having a meaningful relationship with both of the child's parents" and "the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence".

But Chief Justice Bryant said this tension had to be determined by judges on evidence - not populist public campaigns - but with a particular emphasis on child protection.

"Protection of children should need no debate," she said.

"We live in a society where we regard the protection of children as being vitally important and we want our courts and other institutions to support that position."

But she realised theory and reality differed sometimes, saying: "It is a controversial topic that usually breaks down on gender lines."

Chief Justice Bryant said there was a misunderstanding in some sections of the community that children's interests remained the ultimately defining factor in family law cases.

She said a widely held belief that the Act required courts to apply equal shared parental responsibility and equal shared time - and that the courts were routinely doing this - was wrong.

She pointed to statistics that show a 50/50 care arrangement was awarded in only 15 per cent of litigated cases. Parties agreed to a 50/50 arrangement in 19 per cent of cases.

In a third of litigated cases, the Family Court ordered that children spend 30 per cent or less of their time with their father. Abuse and/or family violence was the major reason those orders was made.

In 9 per cent of litigated cases, the Family Court ordered that children spend 30 per cent of less time with their mother. The major reason was the presence of mental health issues.

In 6 per cent of litigated cases, the father was ordered to have no contact with the children. The same order was made in respect of mothers in 1 per cent of cases. Abuse and family violence were the major reasons th0se orders were made.

In a broad-ranging interview with the Sunday Herald Sun, Chief Justice Bryant:

- SAID the Family Court now dealt only with the most difficult and complex cases - mostly involving serious allegations of abuse or high conflict;

- REVEALED the Family Court was trying to make the system less adversarial, with more counselling and judges talking directly to parties in cases;

- ADMITTED enforcing the court's orders had become a problem;

- CALLED for the establishment of a government official to bring enforcement proceedings against parents who breached orders; and

- SAID family law was becoming expensive for ordinary people and that legal aid was underfunded.

Chief Justice Bryant said family law had become more complicated in recent times.

"The Act is not simple. The sections about proving breaches have been made more complicated by the 2006 rules," Chief Justice Bryant said.

"It's more complex than it was, there's no doubt.

"People have to bring their own applications and it's expensive. I think there should be some government official who brings enforcement proceedings.

"Perhaps we should have some sort of filter, where somebody looks at whether there is a need for some adjustment to orders or some assistance to make them work.

"Legal Aid is reluctant to give aid for enforcement and it's expensive, and I accept that that's a problem at the moment. It's difficult to bring enforcement proceedings."

But Chief Justice Bryant hailed gradual changes that were making family law less adversarial.

"I think the majority of family lawyers understand the dynamics and are keen to see people resolve things in a reasonable way," she said.

"We've gone through interesting changes. Originally the legislation was to make it less adversarial, but I don't think they understood in the 70s how it was going to evolve.

"What happened was that it solved the issue of divorce, which now is almost an administrative act.

"But people then started to fight about other things.

"In a defended divorce in the old days, you had to prove someone was at fault.

"But once you removed that you then got to look at other issues – what happened was that people started to fight about the other issues, about property, about parenting.

"But in the past decade I think everybody's been looking at ways of trying to be less adversarial, because I think everyone is starting to understand now that one of the things that is bad for children is conflict.

"There are a lot of things that are happening - the family relationship centres that the government has set up to try to get people to come to agreements without recourse to court are playing a big role.

"And we have a new process in children's cases where the parties, on the first day of court, speak directly to the judge.

"The judges determine the issues with the parties before allowing them to file affidavits. And that's quite important.

"One of the things we do try to do is stop people filing huge affidavits, which just inflame the issue."

Chief Justice Bryant has a different style to her predecessor, the high-profile Alistair Nicholson.

She is said by people in the legal profession to be very conciliatory and not worried about her own legacy.

"She is a straight-shooter who just tries cases on the facts and by the law," said one experienced family law practitioner.

Indeed, she seems uncomfortable discussing the notion that she might have some influence on shaping society.

"I don't think that is the role of Chief Justice to the extent of the decisions of an individual court or the full court," she said.

"I interpret legislation. I suppose that's influence, but we have a lot of legislation and Parliament itself takes a much more active role in shaping how they want things to be than in the past.

"As for my own place in history, it's too early to tell."

It may be that if an emotive and polarised civic debate on family law kicks off in Australia, an arch conciliator armed with facts and reason will be much needed.

If only the court's walls could speak!

Bryant CJ said
I think there should be some government official who brings enforcement proceedings.
The role of a prosecutor of contraventions might restore the authority of the Family Court. Not only in parenting cases but in respect of disclosure in property also. The extent to which  the court is burdened by those seeking to manipulate the system needs attention. This includes the role played by mothers who claim sexual abuse of children and eventually lose custody of a consequence. How is it that the secretiveness of the court does not allow these facts to be known.
Bryant CJ said
CALLED for the establishment of a government official to bring enforcement proceedings against parents who breached orders;
 So can it be expected that a prosecutor will be installed in the court and authoritatively educate the community. There is so little reporting of events in the Family Courts that antics repeated as a consequence of rumours cause delays and added costs. 
Bryant CJ said
REVEALED the Family Court was trying to make the system less adversarial, with more counselling and judges talking directly to parties in cases;
The lack of reading of initial material filed by parties is a cause of the intensification of the tensions. Para-judges who can look at material, interview parties and importantly record what property exists in pools would serve the court well. After five years in the court it remains for my material to be read. Life's are wasted whilst the courts grind through matters which are increasing complicated by the legal industry. A study needs to be done to see how often solicitors do not file in accordance with the rules. A directions hearing in the court can be seen to be solicitors slowing down the case loads by tardy filing of material. It pays the legal industry to keep the matters in suspension as their costs escalate on a time basis.

The Chief Justice needs to educate the community rather than run a closeted and secretive non-corrective institution.

Too often there are times when in the child's best interests the facts are distorted by secrecy.

The role of the court appointing "expert witnesses" is as cosy as it might get. There is a preference of the court to have experts known to the court so that thee need to consider CVs is unnecessary. Too often the privileged "in crowd" are seen in the witness box.

When the major cause of most being in the courts is poor communication skills it is essential that the legal industry step back and allow a simplification as increasingly self represented litigants are compelled to represent themselves. That the court regards it fair for a professional to be in competition with an amateur indicates that they have yet to appreciate what is just and fair. Kind of a "Roman sport". The court at times is a salesperson for the legal industry. Words to the effect that "you would be advised to get legal counsel" are simply contentious.

A case in the court this week saw a $7,000 a day senior counsel and a junior on possibly $4500 per day and a solicitor $3,500 per day up against a self represented woman. Now where in the law books might that be regarded as fair and just.

Too often persons are compelled to represent themselves in a system which costs more than participants the legal industry can afford. A judge ascertaining the issues at an early stage is lauded, having not sighted too much of that during time around the court then a lack of evidence challenges the credibility of the Chief Justice.

A case which took 174 days and saw legal costs of more than $million dollars should be known by all. The rarefied walls of the courts hear the anguish of those whom can't bring themselves to agreeing to reasonable settlements and acting in the best interests of their children.

Until the legal industry are compelled to restructure the court processes there will continue to be an increase in court lists and an intensification of the issues between parties. Big mirrors on court walls might allow the barristers become aware of how dysfunctional they look and act.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
My Dear CJ,

Is it not a fact that around 80% of Child sexual abuse allegations are determined to be unfounded?

If that is the case, would it not be reasonable that cost orders against the guilty party should remain? Better still, add Jail time and criminal conviction to the equation,

Where is the accountability?

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