Friday, October 30, 2015

Barrister speaks out against bias

Michael Challinger, a Melbourne barrister, has seen the family court system abused many times. He gives the following example:
My client Tom was at work when the police turned up. They served him with an intervention order, took him home and told him to pack a suitcase. If he returned home, or contacted his wife or children, he'd be facing two years' jail. He'd had no inkling this was coming.

The order was an interim one, granted ex parte. That means the court issued it in his absence, having heard only his wife's side of the story.

In theory, Tom could go to court and argue his case, but a hearing date was months away. With his wife now in sole possession of the family home, her lawyers came on heavy about a divorce and a property settlement. They hinted that if he played ball, he could start seeing his kids again.

It is difficult for men to contest the allegations:
Most men simply can't afford to keep paying out indefinitely for lawyers. They can't keep taking days off work. They can't stand not seeing their children for months on end, so they come to terms with the applicants. They consent to orders without admitting the allegations and then try to negotiate some child access.

Those who dig their heels in and contest the applications don't fare much better. Often, the paperwork doesn't even particularise the case they have to meet. Tom's application claimed he was "abusive and controlling". How? When? In what way? He'd find that out in court.

In any event, the act defines family violence so widely, it includes the sort of friction that occurs occasionally in even the happiest family: heated argument, raised voices, the silent treatment. I've seen an application succeed where the husband criticised his wife's cooking and (on a separate occasion) slammed a door. You can always find something a man's done wrong.

How to reform the situation? First, the definition of domestic violence needs to be tightened. It needs to be something more than a heated argument or the silent treatment. It should involve physical violence, or the real threat of violence. Second, men who do have an ex parte decision made against them should be guaranteed a court hearing within a specified period of time (a month?). Third, the paperwork should detail the specific accusations made against the men. Fourth, if a woman is found to have fabricated an accusation it should be considered negatively when parenting orders are finally made.


  1. It's obviously a denial of justice to the man (and let's be frank, this hardly ever if at all happens to women - if it did, the system would be reformed within a single electoral cycle, or less).

    What needs to occur is that (a) the house and everything in it is to be impounded, neither the man nor the women are to be granted access for the period of time it takes for the matter to be worked out - there's your incentive against dicking around and ensuring that everyone works hard to an equitable end, and (b) the accused party (i.e. the man) is afforded immediate legal aid representation, and (c) a directions hearing is to be listed 24 hours after the initial order is made evicting the parties form the home - a judicial direction is to be made for all judges to list the matter for hearing within one month, (d) if this month expires, the initial restraint order expires automatically, and of course, (e) if any party is found to be even so much as embellishing the truth or making unsubstantiated assertions in their evidence, that party is to be charged with perjury automatically, on the same basis as mandatory sentencing laws are automatic.

    I am a legal practitioner and I assure you that if this system was in place, the horror stories would end literally overnight.

    Anyone who says that this reform can't be done is simply a fool, a cuck or a disingenuous "reformer". There are even women who would support this - especially those who love the men who get treated like rubbish before Lady Justice.

    1. Your impounding of the house idea is an interesting one that ought to be seriously considered. The way the system currently works, it seems to me, is to make the stress and trauma of the family break up fall mostly on the husband/father, who is the one usually threatened with loss of children, house and money. The longer he is placed under these extraordinary stresses, the longer his trauma lasts. So something that is likely to more quickly give him legal certainty, particularly when it comes to parenting orders, would be of significant benefit.

  2. Alcestis Eshtemoa (formerly Elizabeth Smith)Saturday, 31 October 2015 at 01:02:00 GMT+11

    The most affected parties in the divorce process are the children. They suffer by not having a united family, by witnessing a broken marriage and tend to dwell in a confusing home. False accusations, and fabrications which tend to separate a father and a mother from their kids should be contested in court fairly and accurately.

  3. Get the state out of people's lives and their homes. That's the issue. People are beyond fed. up

    SEe Roger F Devlin's 'Rotating Polyandry' for some horrific facts.

    The West is a Potemkin police state.

  4. Fourth, if a woman is found to have fabricated an accusation it should be considered negatively when parenting orders are finally made.

    Actually if the woman is found to have fabricated an accusation it should be considered perjury and she should be looking at gaol time.

    1. Yes, but isn't a potential loss of time with your children a considerable disincentive to doing the wrong thing?

  5. I'm curious to know why, when a woman is up on charges, other than domestic violence ones, that mitigating circumstances can include needing to care for and raise the children. I've never heard this 'compassionate ground' being used in reducing a man's sentence so that he can effectively provide for and be a father to his children.

    I see a double-standard there, unless there is something I don't know, as I am not a lawyer.

    1. I'd suggest it's because the system recognises a difference between the sexes in some circumstances, but then refuses to entertain them in others. Women are carers and nurturers, except when they're not. Garden variety Animal Farm 'all animals are equal' etc. etc. yadda yadda, you get the idea.

      I certainly still think women should get priority in this area, because I do see difference, but perhaps family relationships (i.e. a father's ability to see his children) should be viewed as deeper than apportioning property.

    2. Rob, you're correct that there is an unprincipled exception at work here. On the one hand, the system is saying that there is a bond between mother and child that is so significant that the child can't possibly be separated from the mother, even if the mother has committed a crime that deserves jail time. On the other hand, the system denies the idea of sex distinctions, or sees them as oppressive constructs where they do exist, and celebrates two homosexual men raising children without a mother.

      Personally, I don't think women should get priority, even though I do believe that women ideally do have a significant nurturing role with young children. When it comes to divorce, for instance, I don't see that there is any option but to allow for something like equal time when it comes to parenting orders. The alternative is to say that a father can only see his children every second weekend, which then does not allow for an effective paternal role and which would demoralise some men from even trying to fulfil such a role. If the "every second weekend" thing is the standard outcome, it also suggests that the real family unit is the one of mother and child, with the father as an outsider. I do understand that there are some men who might not wish to take on a larger role, but they should be thought of as opting out of the standard outcome of an equal parental role, rather than being the standard.

    3. Hi Mark, as an outsider to the divorce process (my wife and I do not like that D-word), I can only look at it objectively. Hence, I think divorce should operate on the principles of fairness and equity. From a purely heartless perspective, there are two commodities at play: property and children. (Not that I condone commodifying children, but for the sake of argument only.)

      As a starting point, If you want to honour male/female roles then the man could get property 100% and the woman children 100%.
      As a starting point, If you want gender balance, then both parties should get property and children 50%.

      I think the system is inherently biased if a woman can gain 80% custody of the children and gain 50% of the value of property, which leaves a 65/35 split in favour of the woman. If she wants children 80% of the time, then she should only be entitled to 20% of the property. I think, for many men, they gain nothing from divorce, but lose much. Is it any wonder mental health issues are a major concern in divorced men (and how often is this swept under the carpet).

      Anything beyond 50% of property and children should be agreed upon by both parties, not by judicial edict.

      Having said all of that, I do like Solomon's wisdom on all this:

      1 Kings 3:5 "He [Solomon] gave an order: "Cut the living child in two and give half to one and half to the other."

      This speaks literally, and figuratively, that splitting children only has negative outcomes on them.

    4. Hi Mark, you wrote: "If the "every second weekend" thing is the standard outcome, it also suggests that the real family unit is the one of mother and child, with the father as an outsider."

      Social outcomes clearly tell us that the mother and child only arrangement is a poor arrangement for children - thus hardly "real". If it were true, that the mother and child arrangement is the natural and best arrangement for children, then you would expect this construct to have the best social outcomes for children.

      Anyone with common sense and a feel for history, fundamentally knows that the mother and father led family is in a class of its own. It is indicative of our times that to even make such a statement is un-PC, bigoted and homophobic. I find that tragic.

      The mum and dad family should be normative, not deemed morally equivalent with other "blended" options.

  6. I believe that if any person fabricates, or exaggerates a story in these instances, there should be extremely harsh penalties for this. As it now, women are protected from prosecution, not by law, but by the notion that if women are prosecuted for providing false testimony, then real victims are more unlikely to come forward. So we continue to sacrifice the lives of men and children to appease the feminist/liberal delusionists. It is interesting that the penalty for falsely accusing someone in the old testament was being stoned to death and now we ignore it.