A Melbourne Law Firm
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A true story about one of Melbourne`s most trusted law firms.
Broken Trust
The poem Lawyers or grave robbers performed by Grant McKracken and Diarmuid Hannigan on the pavement at the entrance of the home of Russell Kennedy.
Lawyers or Grave Robbers ?
pin, stript suits on coffin diggers
stealin tha bones from tha last will inheritance!
soffenin money from the sculls o tha dead!
LAWYERS OR GRAVE ROBBERS?
plunderin tha estates with red tape!
tearin tha families o tha departed apart
mournin their loss of mummy or money!
both soon ta be just memories
LAWYERS OR GRAVE ROBBERS?
year desecrated the bank account an grave!
now ya should be afraid cos yer gonna pay!
that old boys tie is getting tighter
that hole ya dug is getting deeper
LAWYERS OR GRAVE ROBBERS?
THERE`S NO FORKEN DIFFERENCE!!
My own involvement with family inheritance law commenced soon after my mother`s death.
In my own family`s situation we encountered a lawyer Ian Bult and the members of the law firm Russell Kennedy, who were assisted by Russell Kennedy`s resident wills and probate specialist Arthur Bolkas.
Problems occurred from the outset in relation to communication.
My mother in her will had appointed one of my sisters and the members of Russell Kennedy at the time of her death to be executors. Her estate was to be split into four equal shares among her four children. One share that is my own share was placed into a discretionary trust a trust that could at the discretion of the trustees distribute all or part of the capital and all or part of the interest to any member of my own family including myself. The trust was set up upon the advice of Ian Bult in order to protect my share of the estate from my trustees in bankruptcy. At no time was I ever a bankrupt or put into a position where I would be made bankrupt.
Since my share of the estate was not under any threat my sister along with my other brother and sister all agreed that the best course of action for my mother’s family was to use her discretion as trustee and grant me all of the capital and all of the interest in the discretionary trust and hence split the estate equally as per the will.
The lawyer Ian Bult and the law firm Russell Kennedy disagreed with the family and the family member executor on the interpretation of the will. Ian Bult of Russell Kennedy stated he had in his possession a letter written to him by our mother six years prior to her death that supported his and the members of Russell Kennedy’s interpretation of my mother’s will. Ian Bult stated there were other reasons apart from financial reasons as to why he would not release all of the capital and all of the interest from my share of the estate to me. When requested by the family and the family member executor for evidence Ian Bult who was representing the members of Russell Kennedy stated the letter was privileged and withheld it from the family. After six years the letter has finally been revealed to the family by Paul Gleeson, because Ian Bult had retired and Paul Gleeson was appointed as the new trustee.
As there were no other reasons stated by my mother in the contents of the letter, and Ian Bult and the members of Russell Kennedy have specified the letter as the evidence they hold for the interpretation of my mother’s will, one has to conclude that Ian Bult on behalf of the members of Russell Kennedy lied about or misconstrued its contents to the children of my mother and used that lie or misconstruction to bully and intimidate the family member executor not to join in the probate of the will. My mother specifically stated to Ian Bult and the members of Russell Kennedy in her letter that they as lawyers act in conjunction with her daughter, my youngest sister, as none of her children had experience in wills or taxation law and that she understood that it can be a mine field.
Instead Ian Bult and the members of Russell Kennedy set up a dispute with my sister (the family nominated executor) that was based upon a lie or a misconstruction created by them which they knew could not be verified. My sister refused to agree with their fabrication but Ian Bult when representing the members of Russell Kennedy, then intimidated a grieving daughter with a fully loaded commitment to her own family into a position of submission, a position that bought about a nervous breakdown that prevented her from carrying out her role as executor of my mother`s estate. Ian Bult and the members of Russell Kennedy in fact betrayed the trust bestowed upon them as lawyers by my mother and broke her will. The result was catastrophic for the internal family relationships and severely eroded the value of the estate available for the beneficiaries to the amount of at least $180,000 in excess fees and financial waste.
I initially questioned the Law Institute of Victoria and The Victorian Legal Services Commissioner about the right of the members of Russell Kennedy to withhold the crucial letter and was informed that they were acting within the law. I then raised this matter with both the state and federal Attorney Generals without success. I asked the Attorney Generals what gave a lawyer, Ian Bult and the members of Russell Kennedy, the right to impose his will and interpretation of my mother’s wishes over that of all of her children without providing the evidence he held. Again I was met with explanations that did not extract the evidence.
I wrote a submission to the Queensland Law Reform Commission on Australian Uniform Ascendancy Laws suggesting a need to totally overhaul our process regarding inheritance laws.
I suggested:
The power imbalance under the current law, between a lawyer (Ian Bult and the members of the law firm Russell Kennedy) who is the executor and the family of the deceased needed to be changed so as to place the family in a dominant position.
That the implementation of quality standards for lawyers who are acting as executors as was the case of Ian Bult of Russell Kennedy was an essential requirement to prevent the plundering of family inheritance by lawyers.
The need for compulsory training of lawyers who are acting as executors in matters of mediation and alternative dispute resolution so as to insure that untrained lawyers like Ian Bult and the members of Russell Kennedy are prevented from damaging innocent Australian families in pursuit of a dollar.
A cheaper and simpler way of sorting out inheritance matters with the use of non-lawyer run tribunals, instead of lawyers like Ian Bult who charged the estate $450 per hour plus G S T and was represented by Arthur Bolkas an employee of Russell Kennedy who charged $350 per hour. A total cost of $900 dollars per hour to the estate when they had a conversation with one another about problems the law firm and Ian Bult had created through their own dishonest acts.
After writing so much I then wrote the book “Lawyers or Grave Robbers?” which poses the question. Are lawyers who act as executors acting as lawyers or are they just grave robbing? Hence the origin of this web site.
I then returned to The Victorian Legal Services Commissioner and informed her of the inheritance rights, family rights and human rights abuses that my mother’s family had endured through the actions of Russell Kennedy and Ian Bult.
I was informed that lawyers who act as executors are not bound by the Victorian Legal Professional Act 2004, and those lawyers in private practice are not bound by the Victorian Charter of Human Rights and that she was not going to investigate Ian Bult or the law firm Russell Kennedy.
This is despite the members of Russell Kennedy and Ian Bult perpetuating the following inheritance rights family rights abuses upon me, my own family and my mother’s family.
Abuse of Charter Of Human Rights and Responsibilities by Ian Bult and the prestigious Melbourne Law firm Russell Kennedy.
Charter Of Human Rights and Responsibilities Section 8: Recognition and equality before the law.
(1) Every person has the right to recognition as a person before the law.
(2) Every person has the right to enjoy his or her human rights without discrimination.
(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.
In this case Ian Bult and the members of Russell Kennedy discriminated against my mother`s children by not sharing the information they had with the family, including my mother`s nominated family representative. Their sentiment goes as follows: I am a lawyer thus I have a right that empowers me over you because of my position as a lawyer.
In our family`s case, Ian Bult and the members of Russell Kennedy disagreed with the family and were permitted to further empower themselves over the family and break the contract of trust imparted to them with our late mother through her will by bullying and intimidating the family member executor to not participate in probate whilst perpetuating a lie or a misconstruction, thus discriminating against the whole of the family. Discrimination occurs when one group in the culture is far more powerful than the group it exploits, as the whites in Africa exploited and discriminated against the blacks. As has been systemic within Australia towards the Aboriginal people for the past 230 years. Discrimination and empowerment of a privileged cartel are the twin sisters of racism.
It is universally knowledge that inheritance inequity is one of the main drivers of discrimination between family members which leads to the destruction of extended family networks. This process impedes upon those families development in Australia, and will impact upon migrant families more severely than the established population due to their paucity in extended family networks who are supportive at times of death in their home nations but have often been replaced by lawyers in Australia.
Because the Victorian Legal Services Commissioner is aware of this discrimination against a less powerful group within Victoria that are prone to discrimination by lawyers like Ian Bult and the members of Russell Kennedy who act as executors or deal in deceased estates matters the Victorian Legal Services Commissioner is bound to act upon the problem so as these human rights abuses stop.
Charter Of Human Rights and Responsibilities Section 13: Privacy and reputation
A person has the right not to have his or her —
(a) privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) reputation unlawfully attacked.
Reputation is founded upon inter family relationships, the way inheritance is distributed between a parent and child will go to the core of an individual’s reputation. Reputation is affected both internally and externally. Our reputation is how we see ourselves and how others see us; our reputation is formed through an accumulation of our historical actions. How children’s reputations are created begins with their relationships within their families. Within my own mother`s family through its understanding of its relationships, made a decision on how our mother`s will should be interpreted, based upon their recognition of each and every bodies understanding of their reputation and that of our family. Ian Bult and the members of Russell Kennedy after being told how their actions would adversely impact upon that reputation of the family and of the individuals who make up the family, still chose to ignore the requests from all members of my mother`s family or provide the evidence that Ian Bult and the members of Russell Kennedy stated they had to support their actions. Ian Bult and the members of Russell Kennedy did not allow for the family to interpret the information or to discuss an equitable resolution. Instead Ian Bult and the members of Russell Kennedy recommended the removal of the family member executor, thus breaking the contract of the will.
The Victorian Legal Services Commissioner`s failure to act on his knowledge of the above events unlawfully supports an attack on my own reputation and that of our family.
Charter Of Human Rights and Responsibilities Section15: Freedom of expression
(1) Every person has the right to hold an opinion without interference. (2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether: (a) orally; or (b) in writing; or (c) in print; or (d) by way of art; or (e) in another medium chosen by him or her. (3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary— (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.
The relevant section is “the right to hold an opinion without interference”. To hold an opinion requires information in order to substantiate ones position. The ability to have an opinion and how the opinion is formed begins before birth and transcends to death. Opinions are formed in the beginning through inter family interaction. So to hold an opinion about a family matter goes to the core of one’s development.
The members of Russell Kennedy and Ian Bult have denied a family, information that was openly asses-sable when my mother was alive, to allow her children to form an opinion of what her last wishes were. The actions of the members of Russell Kennedy and Ian Bult have denied my family to hold an opinion about one of the closest elements that families have, the transfer of inheritance from one generation to the next; the transfer of inheritance incorporates the life time history of a family unit. It displays the trust between parent and child and the trust between the children and that parent. When those trusts are interfered with by an outside member of the family without reasonable explanation and the equality of inheritance distribution is changed, the fine balance of trust can be shattered, as is the case with my mother`s family.
Charter Of Human Rights and Responsibilities 17: Protection of families and children
(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State. (2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.
Families are the fundamental group unit of society and are entitled to be protected by society and the State [refer to the above points under sections 8, 13 and 15].
Considering the following points of fact:
The members of Russell Kennedy and Ian Bult failed to show evidence of their position when asked.
After six years with a change of trustees from Ian Bult to Paul Gleeson, the members of Russell Kennedy finally produced the evidence that should have been forthcoming when my sister, the family nominated executor requested it.
This evidence proves that Ian Bult lied to or deceived the children of their dead mother about her final wishes and was supported by the law firm Russell Kennedy.
The members of Russell Kennedy and Ian Bult bullied and intimidated the family member executor to resign based upon the lie.
The members of Russell Kennedy and Ian Bult were told by all members of the family, one a medical practitioner and the other a trained psychologist that their actions would damage the family and the value of the inheritance at their own financial gain.
The members of Russell Kennedy and Ian Bult broke the fiduciary trust bestowed upon them by my mother when they misconstrued important information to my sister and my mother`s children regarding their mother`s wishes and refused to work in conjunction with my sister and my mother`s children as my mother had requested of them in the letter..
By doing so the members of Russell Kennedy and Ian Bult broke the contract of the will.
The members of Russell Kennedy and Ian Bult destroyed the interpersonal relations between my mother’s children.
The members of Russell Kennedy and Ian Bult through poor administration and unnecessary legal fees denied my mother’s children at least $180,000 in the value of their inheritance.
This is a true example of an inheritance rights abuse by an Australian lawyer Ian Bult and the members of Russell Kennedy. It is also a family rights abuse and a human rights abuse by an Australian lawyer Ian Bult and the members of law firm Russell Kennedy.
The lawyer Ian Bult who assumed the role of executor from the members of Russell Kennedy has not provided any proof that he has taken part in any up to date training in conflict resolution.
An employee of the law firm Russell Kennedy, Daniel Kelliher openly admitted during a telephone conversation that as lawyers they did not work with quality standards when dealing with deceased estates.
The Victorian Legal Services Commissioner has not implemented mandatory training for lawyers who act as executors or implemented mandatory standards by which they operate incorporating section 17 of The Victorian Charter of Human Rights. Due to the fact that the Victorian Legal Services Commissioner is aware of many instances within Victoria involving the legal profession and the human rights abuses of families by them when dealing with deceased estates and has not acted to incorporate section 17 of the Victorian Charter of Human Rights to guide their activities, this lack of action is itself an abuse of Victorians Human Rights, particularly when you consider the amount of money that is currently available for exploitation by unaccountable self-serving lawyers.
Charter Of Human Rights and Responsibilities Section 19: Cultural rights
(1) All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practice his or her religion and to use his or her language. (2) Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community— (a) to enjoy their identity and culture; and (b) to maintain and use their language; and (c) to maintain their kinship ties; and (d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.
The relevant section is ‘cultural rights to maintain their kinship ties’. The Charter states that this section is only applicable to Aboriginal people. I suggest that from an ethical perspective the Victorian Legal Services Commissioner should act on behalf of every ethnicity in our multicultural society and are bound by the Victorian Charter of Human Rights in my case as with many migrant Victorians who although not aboriginal, understand the imperative of kinship, each family arriving in Australia being limited in kin to their immediate family. Destruction of those kinship’s through adversarial legal tactics that only benefit self-serving unaccountable lawyers when dealing with deceased estates is an abuse of those families’ kinship rights.
Charter Of Human Rights and Responsibilities Section 20: Property rights.
A person must not be deprived of his or her property other than in accordance with law.
Again I state that The Victorian Legal Services Commissioner is bound to act in my case as with many other Victorians who are introduced to an expensive, often unaccountable and lengthy legal process when encountering a deceased estate, a process that directs large amount of property away from the people who are entitled to it and into the hands of a powerful and select group within our state.
Charter Of Human Rights and Responsibilities Section 24: Fair hearing
A person charged with a criminal offense or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
What fairer hearing than to have all of one`s children decide the destiny of your family Instead of lawyers such as the members of Russell Kennedy and Ian Bult who have broken the trust bestowed upon them by lying to the children of their dead mother about her final wishes.
The members of Russell Kennedy are:
The persons named as executors named In the Supreme Court of Victoria Probate Jurisdiction, in the will of Elizabeth Moira Hannigan are:
Ian Fraser Bult of Russell Kennedy named as executor with leave being reserved to (my sister) and the following members of Russell Kennedy. Michael Douglas Main, Bruce Wayne Kent,John Mathew James Corcoran, Michael William Gorton, Ross Fraser Hodges, Paul Gerard Gleeson, Wai Hwoon Low, Damian Thomas Neylon, Victor Anthony Harcourt, Robert Anthony Ewing, Colin Robert Taylor, Andrew James Sherman, Leslie Andrew Fox, Andrew Bruce Van Ingen, Julie Callea-Smyth,Leonard Adrian Warren, Sebastian John Michael Saccuzzo,Rohan David Harris and Rosemary Barbara South Gate.
By Mark Russell
September 25, 2005
WHEN a senior Melbourne magistrate heard the case of how the frustrated son of a deceased dentist had attacked the solicitor who drew up his father’s will, he called on the State Government to change the laws for disputed wills. But that was five years ago and magistrate Robert Tuppen, who retired from the bench on Tuesday, is still waiting for authorities to act.
Mr Tuppen raised his concerns when told the estate of dentist David Austin White had been estimated at $550,000, until a family dispute over the will ended up before the Supreme Court. White’s son, Mark, his two siblings and their mother had become embroiled in the dispute, which included her $300,000 winning Tattslotto ticket.
The subsequent legal fees spent trying to resolve the issue reduced the estate’s value to just $90,000, and tensions boiled over during a mediation hearing. An angry and disillusioned Mark White pushed the solicitor, Keswick Steel, into a wall and then bloodied his head and nose in a scuffle. White pleaded guilty to recklessly causing injury and was fined $750. At the end of the case, Mr Tuppen called for changes to allow some will disputes to be heard in lesser jurisdictions so people were not “deprived of everything”.
The law in Victoria currently requires any disputes involving deceased estates valued at more than $15,000 to be heard in the Supreme Court, with cases often costing tens of thousands of dollars in legal fees. A bipartisan parliamentary committee headed by Labor MP Rob Hudson was set up two years ago to investigate the issue but was put on hold while attempts were made to set up a uniform national model to administer deceased estates, wills, family provisions and intestacy.
The national review, initiated by the Standing Committee of Attorneys-General, is being co-ordinated by the Law Reform Commission of Queensland, but critics claim it is taking too long. The Victorian Parliament Law Reform Committee’s executive officer, Merrin Mason, said the national review was expected to be completed some years ago but the two final reports on deceased estates and the distribution of property when a person dies intestate would not be released until the end of the year.
“It’s just one of those situations where it wouldn’t be sensible to start developing a state system when we know there’s all of this work being done to try and get consistency across jurisdictions,” Ms Mason told The Sunday Age.
A spokeswoman for state Attorney-General Rob Hulls said the Administration and Probate Act dated back to 1958 and needed to be updated. Victorian Legal Ombudsman Kate Hammond said the number of complaints against lawyers over wills, estates and probate was the third highest behind family and de facto issues and conveyancing.
Ms Hammond said her office had received 526 complaints against lawyers over family and de facto issues in 2004-05, 333 over conveyancing and 249 over wills, estates and probate. When the Victorian parliamentary inquiry into wills and deceased estates finally begins sometime next year, it will examine:
- ■The desirability of new legislation and procedures to deal with the administration of a deceased estate. ■Whether the Administration and Probate Act should be amended to provide alternative mechanisms for the resolution of disputes that involve small estates. ■Whether the Magistrates Court and County Court should also be given jurisdiction to deal with grants of probate and administration, and deal with disputes relating to wills. ■And whether amendments are necessary in relation to the charges and commissions of lawyers who also act as executors.
One critic who believes the system is in urgent need of an overhaul is Collingwood businessman Diarmuid Hannigan, who has been involved in a dispute with lawyer Ian Bult, from law firm Russell Kennedy, over his mother’s estate. He claims Mr Bult, the co-executor of Elizabeth Hannigan’s estate, is unfairly withholding his inheritance. Mr Bult has denied the claim.
Complaints by Mr Hannigan to the Legal Ombudsman, Attorney-General and the Victorian Law Institute’s professional standards body have proved futile.
Institute lawyer Penny Antonov said Mr Hannigan had no legal rights to file a financial loss claim against Mr Bult because he was not Mr Hannigan’s lawyer, so there was no solicitor-client relationship.
CHARGING UP, IN MINUTE DETAIL Ian Bult, a senior partner with the Melbourne law firm Russell Kennedy, charges $425 an hour for his services, plus GST. His senior associate, Arthur Bolkas, charges $330 an hour. They billed the estate of Elizabeth Hannigan, who died last year, more than $32,000 in legal fees following a dispute with her eldest son, Diarmuid, over the will. The list of charges includes:
■$99 for 18 minutes perusing and checking holding statements (Bolkas). ■$99 for 18 minutes working on file note (Arthur Bolkas). ■$42.50 for six-minute phone call. ■$66 for 12 minutes reviewing file (Arthur Bolkas) ■$255 for 36 minutes drafting two letters (Ian Bult). ■$264 for 48 minutes preparing statements to beneficiaries (Arthur Bolkas). ■$340 for 48 minutes briefing counsel (Ian Bult). ■$127.50 for 18 minutes working on letter (Ian Bult). ■$382.50 for 54 minutes perusing medical records (Ian Bult). ■$429 for one hour and 18 minutes on letter to beneficiaries (Arthur Bolkas). The list of charges to the estate goes on. And on …
Lawyers free to say ‘no’ at will
By Mark Russell
September 25, 2005
COLLINGWOOD cake shop owner Diarmuid Hannigan’s mother, Elizabeth, was 74 when she died on June 21 last year.
She left an estate valued at more than $750,000 to be divided equally between her four grieving children. But while the three youngest siblings each received an initial $100,000 payout, Diarmuid was stunned when told by the co-executor of the estate, lawyer Ian Bult, that he would only be getting $50,000.
Ian , a senior partner with law firm Russell Kennedy, said he had a letter from Mrs Hannigan directing him to place the remaining $50,000 of Diarmuid’s inheritance into a testamentary trust. The money can be paid out of the trust at the discretion of the executor.
Mr Bult has refused to give Mr Hannigan a copy of the letter, citing client confidentiality. Mr Hannigan, a father of four, believes his mother wanted to protect his money from creditors after one of his businesses had failed in 1996, not knowing he had cleared his debts.
He has since spent at least $10,000 hiring a lawyer to try to access the trust funds. The dispute has also cost the estate more than $32,000 in legal fees billed by Mr Bult. Mr Hannigan claims another $260,000 from the estate remains in dispute, as well as funds from the pending sale of Mrs Hannigan’s retirement unit at Northcote.
“There appears to be very little in the way of consumer protection for any family who may be beneficiaries of estates,” Mr Hannigan said.
Mr Bult refused to comment, but in a letter to Mr Hannigan he rejected the claim that his firm was prolonging the administration of the estate for its own personal benefit.
Russell Kennedy mentioned in the Senate for all of the wrong reasons.
John Madigan (Victoria, Democratic Labor Party) Share this | Link to this | Hansard source
I rise tonight to speak about what a barrister has described to me as the all but complete denial of access to the courts for ordinary people due to the severe and extreme cost of litigation. This barrister, an experienced and objective advocate in criminal and commercial matters, despairs at the legal injustices that go unaddressed. He despairs at the ongoing harm caused by a legal culture that has priced access to the courts completely out of the reach of ordinary Australians. The gravy train legal culture that prevails is most dangerous when it impacts the weakest and most vulnerable in our society. Our legal practitioners, this barrister said, have increasingly lost their identity as officers of the court, with all of the obligations that entails. They are, he said, preoccupied with commercial advancement.
Representing people before a court is so time consuming and demanding that ordinary people can no longer afford it. Those who need the protection of the law the most—the poor and alienated—have no hope of getting the considered and experienced representation they desperately need. Ironically, and all too frequently, litigation causes financial ruination to the parties and creates problems which dwarf the original dispute. The long-term harm and distress persist long after the legal issue is resolved or abandoned for want of resources.
Last week saw a case in point. On Wednesday I excused myself from this place to attend the Federal Court in Melbourne in support of a constituent. Appearing before the court was a farmer from western Victoria, someone I have known for many years. His farm was bankrupted by his own law firm. This firm had represented this individual in a family farm partnership dispute that began in 2005. Anyone who has worked on the land would not be unfamiliar with the concept of a family farm partnership dispute. Farm partnerships and farm succession planning are an inevitable part of almost any rural operation. But in this case the farmer in question—I will call him Murray—has had his life destroyed by the legal firm he appointed to protect his interests.
According to his affidavit, Murray obtained a projected legal cost in 2005 from law firm Russell Kennedy of approximately $30,000. He was further advised in 2007—when the costs were already $83,990, according to the affidavit—that the proceedings might cost a further $100,000, including disbursements. At the time, according to documents presented in the court, part of Murray’s costs would be recovered—Russell Kennedy told him. But, by the conclusion of the matter, Murray’s fees from Russell Kennedy were in excess of $380,000. I repeat: an initial estimation of costs to Murray by Russell Kennedy of $30,000 had grown to $380,000.
But that is not all. A key part of Murray’s action in this partnership dispute was a diary. In this diary was a record of an agreement between Murray and his father. And this diary was lost by Russell Kennedy some time in 2008, according to documentation attached to Murray’s affidavit. In an earlier court action, it was ruled the discovery of the original diary should be made. This is stated in a letter dated 1 September 2008, and written by Russell Kennedy principal Michael Main. In that same letter, Mr Main said: ‘We will continue our search for the diary, and would be grateful if you could also check to ensure that it is still not in your possession or has been returned to you by mistake.’ That is right: Murray’s own law firm, it appears, lost a crucial piece of evidence.
On the website of Russell Kennedy it says the firm is committed to making a difference to their clients. Certainly, Murray’s involvement with Russell Kennedy has made a difference in his life. Because of their incompetence, because of their extraordinary poker-machine-style fee-accrual system and because of their sheer legal bloody-mindedness, Russell Kennedy decided to bankrupt a sole individual farmer.
Murray’s prospects of financial recovery, of rebuilding his life, have been severely threatened by this action. And how much money did Russell Kennedy get back against their $380,000 bill? Not a cent. Murray was already virtually destitute. It was an action based on the strict confines of the law, as futile it was vicious. And, while Russell Kennedy’s action may have been legal, was it appropriate? Was it fair? Was it ethical?
Needless to say, it was the same Mr Main who appeared at court last week in his firm’s proceedings against my constituent. The Federal Court is, of course, only one platform in our legal industry. There is the High Court, the Supreme Court, the County Court and the Magistrate’s Court. It is a labyrinth, with top lawyers commanding fees of $10,000 a day or higher for their services. According to research by Ibis, legal services in Australia are a $21 billion industry, employing nearly 100,000 people. It is a gravy train with many, many carriages.
But for the moment I would like to drill down into one aspect of this labyrinth, the Family Court. In many ways, this is both the most important and the most divisive part of our legal system. I say that because it goes to the heart of Australian society—our families and our children. The current state of the Family Court points to a tragic legacy left behind by the previous government.
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 was passed by the Senate and came into effect in 2012. This legislation changed the Howard government’s shared parenting reforms via a spurious claim to provide greater protection for children from family violence. The objective was to improve the Family Court’s decision making by giving priority to a child’s safety when determining what is in their best interests. The aim was also to make it easier for allegations of family violence and sexual abuse to be brought before the court. And was this successful?
Last year a retiring Family Court judge gave his view, which was reported in the Fairfax press. Justice David Collier had 14 years on the bench. And, keep in mind, it is rare for Family Court judges to speak publicly about their views. Many of us would recall the 1980 murder of Justice David Opas and the 1984 bombings of the Parramatta Family Court building and the homes of two judges. The Family Court is the flashpoint for the breakdown in family life. It is a place of heat and anger and stress. It is a place where lives collapse and are changed forever.
Justice Collier gives us clear insight into what is currently forging this tragic metallurgy of Australian families in crisis. He said unprecedented hostility was infiltrating the Family Court, with a willingness by parents to use their children to damage one another. ‘Allegations of child sexual abuse are being increasingly invented by mothers to stop fathers from seeing their children’, Justice Collier said. I quote from Justice Collier: ‘
When you have heard the evidence, you realise that this is a person who’s so determined to win that he or she will say anything. I’m satisfied that a number of people who have appeared before me have known that it is one of the ways of completely shutting husbands out of the child’s life.
Justice Collier called this ‘a horrible weapon’.
The continued use of false claims is undoubtedly fuelling the crisis of our Family Court system. Member for Dawson George Christensen has been a strong campaigner against our unfair family law and child support systems
He referred to the Gillard government amendment as a Trojan horse, loaded with consequences that would undermine some of the most basic human rights of children and parents, particularly fathers. This reform to the act provided for two primary concerns for the Family Court to consider when making parenting orders. The first concern was the benefit to the child of having a meaningful relationship with both of their parents. The second concern was the need to protect children from harm and abuse. On the surface, both of these seem valid. However, the Gillard government’s amended act clarified the second primary consideration of violence over the shared parenting provisions. Where there is a conflict between these two primary considerations, the act now requires the courts to give more priority to the protection of children from harm and abuse. Is that a good idea? Of course it is in principle. But this amendment has allowed the introduction of many false allegations in the court. According to many Family Court practitioners—the judges, the clerks, the barristers and others—the system is on the brink of collapse.
The Chief Justice of the Family Court of Australia told ABC radio earlier this month that cuts to legal aid have led to more and more people representing themselves. Chief Justice Diana Bryant said that the Family Court system was unquestionably compromised. She said that the Family Court produces decisions that do not stick and then you have people who are unhappy with decisions or who take matters into their own hands. Chief Justice Bryant said:
… there are mental health issues and the court needs to know about those issues and to know the extent of them, and you don’t have parties with the capacity to bring the right evidence, then you are certainly putting children at risk.
Aiding this breakdown of the Family Court system was the repeal of the sections—including 60CC(3)(c)—that were known as the friendly parent provisions. This meant the court is no longer required to consider the willingness and ability of a parent to facilitate a relationship with the other parent in determining the best interests of the child. Reforms by the Howard government were designed to get away from the adversarial system and allow a court to consider giving custody to the parent who was most likely to include the other parent in the child’s right to have a meaningful relationship with both parents.
Additional consideration under the aforementioned section also requires the court to consider the extent to which each parent has fulfilled or failed to fulfil his or her obligations to maintain the child. This includes the extent to which the father or mother has taken the opportunity to participate in decision making in relation to the child, as well as spending time with and communicating with the child. As divorce is no fault, the reasons for failing in this area are seldom considered, so parental alienation becomes a successful tactic. One parent presents an accusation against the other parent for failing to be involved. Excluding the other parent becomes the grounds to further eject the alienated parent.
Additionally, hearsay evidence of children is now allowed in Family Court proceedings. The provisions of the Evidence Act 1995 do not apply to child-related proceedings. The Gillard government repealed the section which allowed the courts to order costs against a party who has been found to have knowingly made false allegations or statements before the court. This means any accusations can be made in a Family Court hearing with impunity. Frequently, we hear unsupported accusations of abhorrent behaviour by one parent. As I said earlier, Justice Collier called this ‘a horrible weapon’. Lastly, we operate under a new definition of family violence. This means family violence now means just about anything. So it is open slather; there are claims, counter-claims and a veritable river of unsubstantiated accusations in Family Court proceedings.
A survey of 68 New South Wales magistrates concerning apprehended violence orders—AVOs—found that 90 per cent agreed that some AVOs were sought as a tactic to aid a person’s case in order to deprive a former partner of contact with their children. About a third of those who thought AVOs were used tactically indicated that it did not occur often, but one in six believed it occurred all the time. A similar survey of 38 Queensland magistrates found that 74 per cent agreed with the proposition that protection orders are used in Family Court proceedings as a tactic to aid a parent’s case and to deprive their partner of contact with their children.
It is time to ask ourselves if we are falling short of the ideal professed under the international Convention on the Rights of the Child. Included in this are the child’s right not to be separated from his or her parents against the child’s will, the child’s right to maintain contact with both parents if they separate, the child’s right to be heard in any judicial and administrative proceedings, and the child’s right to freedom of expression. Lastly, the convention provides that parents or legal guardians have the primary responsibility for the child’s upbringing.
As the member for Dawson said earlier this month, family law and child support are messy areas and there are no winners. But under the current system some of the losers are being turned into massive losers. That is even to the extent of losing their children and their lives. The current system is blatantly unfair and negligent. It is biased against fathers. It is unfair to children, who are the most vulnerable members of our communities. It must be fixed, as a matter of urgency.
