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By James Johnson, Justice Advocate and Federal Candidate for Lalor

A number of important legal test cases are under way to challenge the State and
Federal Governments' claims that they have the legal power to regulate family life –
beginning with the vexed issues of family violence allegations and false allegations.
The Victorian Magistrates (Family Violence) legislation and Victorian Police and Magistrates Court actions
and orders enforcing those laws are unconstitutional because they violate section 109 of the Australian
Constitution. The same can be said for State family violence legislation, State Police and State Court
enforcement actions in every other State and Territory.

Family violence matters are wholly and exclusively matters of federal jurisdiction for the federal courts by
virtue of the federal Family Law Act 1975 and section 109 of the Australian Constitution.

We can't have State Courts running family violence matters because this doubles up with and interferes
with and works against the federal Courts applying the federal laws and federal court procedures that
address family violence issues. The result is failure of due process of law, double jeopardy and other
human rights violations and injustices. These are the reasons that the Constitution (generally, and section
109 specifically) outlaws State Governments from making laws that double up with federal laws and federal
jurisdictional processes.

Thousands of cases of false family violence allegations are identified every year.

These sorts of false allegations are almost the rule rather than the exception in family law matters. The
legal system encourages them. They are almost guaranteed to happen whenever a marriage breaks down
and custody and family assets is at stake.

In family law cases it pays to get in first and make false allegations against your former spouse before your
former spouse gets in and makes false allegations against you. Perjury laws are all but ignored by the
courts. Even when the judge finds one of the parties has perjured themselves making false allegations it
never proceeds as far as the person being charged or punished. The courts almost always go along with
the first to make the allegations and treats the late runner as a copy-cat just making things up. But the the
first set of false allegations are usually the most callous, most calculated, and most false of the two.

Usually these false allegations are made for collateral reasons including for financial gain as well as
manipulation, power or revenge. The most common scenario is where the biological mother, lawyer-ed up
with government funded lawyers, cuts a biological father (and therefore all of the father's extended family)
out of any future part in the lives of the children. Ever so occasionally, it is a lawyer-ed up (because he is
cashed up) biological father who is able to get in first and manipulate the system the other way round so
that it is the biological mother who is squeezed out. Which ever parent is squeezed out of their children's
lives. The financial and emotional pain exceeds the worst tortures that our otherwise civilised society
imposes on the worst criminals.

Usually it is the lawyer-ed up mother who raises allegations of physical and sexual violence against her
formerly beloved spouse, so that she can move into a relationship with a new man with a better property
settlement and weekly maintenance and social welfare payments than if the children lived equally with each
of the parents like should happen under International laws such as the UN Declaration of The Rights of the

Perhaps the reason the law is so dysfunctional is simply that the the State and Federal Governments have
a perverse economic incentive to see the biological father squeezed out. This ensures that the
governments extract the most taxes from the dad, the women extracts the most maintenance and child
support from the dad, and therefore the woman's social welfare costs to the State are minimised.

Whatever the reasons the reality is that most State governments direct disproportionately more legal aid
funding to women and virtually no legal aid funding to the men. And in these situations it is the lawyer-ed
up party who always emerges as the winner. But not much of a winner once the huge legal costs are

The lawyers always emerge as the biggest winners. Sometimes they are the only winners, with both the
former spouses left homeless and penniless. The lawyers win from the process, and win even more with
the more delays in producing any outcomes, and they win regardless of what those final outcomes are for
the parties.

These false allegations of family violence fuel a $45 Billion dollar per annum family law industry which turns
over about 100,000 new divorcing couples every year. With every court case typically stretching out over 4
to 9 years, it's the 30,000 family lawyers who mostly reap the financial benefits of this industry with large
amounts of taxpayer funds and large amounts of divorce estate assets winding up in their pockets.

$40 Billion, the wealth of 100,000 newly divorcing couples (about $400,000 per family) is processed
through Australian family lawyers offices and courts every year. The trauma of separation and painfully
protracted legal processes lead to job losses, increased financial difficulties and fuels a huge part of the
banking and financial industry with repossessions of family homes and cars, which wipes off about about
50% of this wealth ($20 Billion a year). Of the remaining two quarters, Australia's 30,000 family lawyers
take a quarter ($10 Billion a year, or $333,000 per family lawyer.)

But the 30,000 family lawyers also benefit another $33,000 each as their share of $1 Billion a year in State
governments legal aid funding for family lawyers, giving them a typical annual income of $366,000.

This legal aid funding is so lucrative that in the UK the family law firms are collectively suing the UK legal
aid fund (the UK Legal Services Commissioner) for proposing to cut in half the number of family lawyers
eligible to receive this extra government funded income.

On top of this another crop of family lawyers, the judges, registrars, associates, para-legals, administrative
officers, security and other support staff of the family courts benefit from $4 Billion of taxpayer funds spent
by the federal government to fund the operation and upkeep of the family courts. This equates to $40,000
for each of the 100,000 newly divorcing couples that the family court system starts processing every year.

And each of those newly divorcing couples could do with a $40,000 piece of that $4 Billion.

Firstly, more than half of all divorces are triggered by financial problems.

Secondly, at the end of the family court process, once the repossesors have taken two quarters, and the
family lawyers have taken their quarter and moved on to new clients, the divorced couple is left with the
stark reality of having fought over only a quarter of the assets that they held prior to their divorce.
They still have the same number of children to raise and provide for, but one or both may have lost their
jobs and/or be subsisting on welfare and they now have to fund (rent) two one-parent homes instead of the
one (owned) two-parent family home that they used to share before the legal proceedings. A couple that
had $400,000 prior to the divorce has now become two individuals beaten up by the legal system fighting
over a share of the $100,000 left over too them after two quarters of their wealth has been taken by
repossesors and a third quarter taken by the lawyers. Hardly surprising that both mum and dad are fighting
even harder over and each wants the biggest if not the whole slice of the last quarter, which is all that the
system lets them keep.

No wonder divorcees (male and female) are so bitter from the process. No wonder divorce proceedings
are so bitter and easily inflamed, and delayed, to the financial benefit of the family lawyers controlling the
situation. And no wonder that whole areas of suburbs are now springing up where divorced-single parents
in two's and threes are sharing rental accommodation. This is all that they can aspire to in the new financial
order once the divorce proceedings are over. And they could not have imagined it (and their lawyers would
not dream of telling them to expect it) at the beginning of the divorce process.

And no wonder there are frightening statistics on depression, crime, self-harm and suicide springing up
amongst those who have been through the emotional and financial effects of the divorce process either as
parents or as children and have been driven from reasonable prosperity to abject poverty in the process.

For example, statistics collected by the Dads on the Air from Child Support Agency data reveal that the
number of “CSA clients” (non-custodial parents who pay child support) who have died for the 3 years since
the Rudd-Gillard Government was elected stands at 12,493. The CSA-Death Toll for September 2010
alone was 448 deaths: equivalent to 15 deaths every day:

Parting couples are temporarily not at their best emotionally and judgement-wise. They are in the early
stages of grief over separating and dealing with emotional concerns over the underlying reasons for the
relationship breakdown. They know very little about lawyers or how lawyers operate. They probably have
not had much to do with lawyers before. They are lambs to the slaughter.

It is hard to think of a more obvious group of consumers who are vulnerable and need consumer protection
laws and advocates to protect themselves, their homes, their children, even their livelihoods and their lives
from circling predators. And yet, as the statistics show, the laws leave them totally exposed and vulnerable
to predators. It's as if the predators are the protected species, not the weak and the vulnerable.

Whenever allegations of family violence are made in the context of a separation or a divorce, there should
really be a presumption that the allegations are false. The accuser must be required to prove them
'beyond reasonable doubt' with substantial independent evidence. This is consistent with the concept that
an accused (ex-spouse or parent) is “innocent until proven guilty.” And the hearing should proceed like any
other criminal trial of violence charges – even including a right to a jury if the accused wants one.

But in practice these basic legal safeguards, these basic human rights, are never given to a man accused
of family violence.

In the lax standards of these family courts and state family violence court hearings these allegations are
regularly found even against biological dads of impeccable history and character. It is as if they are
presumed guilty until they prove their innocence. And no amount of evidence is enough for an accused dad
to prove his innocence even if he has demonstrated 4 decades of impeccable character.

Nobody condones violence in any of its forms. Not violence against family members. Not violence against
strangers. Certainly not violence where children are the victims.

But it is a sad reality that the legal system, and all of its lawyers (policemen, solicitors, barristers and
judges) treat men who actually commit violence against non-family members with much more dignity and
respect for due processes and human rights than they show to honest, compassionate, decent hard-
working family men in distress (and, occasionally, thoroughly decent, compassionate women in distress)
who are falsely accused of violence against their own family members and loved ones.

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