Justice Robert Benjamin says a culture of bitter, adversarial and highly aggressive family law litigation ‘must stop’
Ms Norton would sometimes receive up to five letters a day – including on weekends – from her ex-husband’s lawyer. The letters were sometimes angry, allegedly threatening and, according to a presiding judge, inflammatory and accusatory. Regardless, Norton would have to pay for her lawyers to read and respond to each one.
“The letters alleged that in being forced to leave the family home I had chosen to adopt a nomadic way of life,” Norton tells Guardian Australia.
“They alleged I was forcing my children to walk the crime-ridden streets and was feeding them junk food … They alleged I was an alcoholic, that I was mischievous and that my extended family was insane.”
By the time the property and custody aspects of the bitter court dispute were settled, she and her ex-husband had accrued more than $860,000 in legal fees.
Norton says as well as the repeated letter-writing, the case also involved multiple court applications and aborted legal mediations – all of which cost to launch and respond to.
It amounted to a form of financial abuse, she feels, and one that was able to happen in the current court system.
“As the family court system falls apart, all of the unethical, unscrupulous, bottom-feeding lawyers converge to extract money from the carnage,” she says.
She says her story is not uncommon, based on other people she has spoken to who have also gone through the family court, and it had a particular impact on victims of domestic violence and children from those relationships who, for instance, did not want to comply with custody orders to visit one parent.
Norton says one lawyer revealed to her that “he had billed the entire assets of a client in legal fees – he said it as a joke, like, ‘I’m about to get a bollocking from a judge’.”
The “eye-watering” legal charges accrued in the acrimonious family court dispute prompted the presiding judge to refer lawyers to the legal services commission.
In his judgment Justice Robert Benjamin noted the large volume of correspondence between solicitors that were attached to the affidavits, including some within the 500 pages of exhibits to the father’s affidavit.
“Some of those letters were inflammatory and reflected the anger of the parties or one or other of them,” he said. “The letters were at times accusatory. They were often verbose and at times involved unnecessary tit-for-tat commentary. Some of the letters served little or no forensic purposes.
“Solicitors are not employed to act as ‘postman’ to vent the anger and vitriol of their clients.”
He requested the the Legal Services Commission of New South Wales “investigate and consider whether the costing and approaches adopted by each of the current solicitors for the parents in these proceedings … could constitute professional misconduct or unsatisfactory professional conduct by either one and/or other of the solicitors”.
In the judgment, which Benjamin renamed as Norton v Simic in order to de-identify the parties and their children, he noted he had previously expressed concern about the high charges of lawyers in property and parenting proceedings, but his concerns “have seemingly gone unheeded”.
His judgment said:
In the Sydney registry of the family court I have observed what seems to be a culture of bitter, adversarial and highly aggressive family law litigation.Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences approach to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know.Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial wellbeing of the parties and their children. It must stop.
Benjamin said he could not make any comment on the appropriateness of the fees charged by the two parties’ counsel – who he described as competent and attracting no criticism in terms of their interaction with the court.
The barristers for both parties were not criticised and Benjamin did not have details of their fees.
Benjamin said that legal practitioners – who were often representing people for their first interaction with the family court – had a duty to minimise costs and reduce conflict.
“The children of these parties depend upon the income and assets of their parents to support them,” he said. “Yet, in this case, the costs of the proceedings have taken a terrible toll on the wealth of the parties and consequently their ability to support and provide for their children.”
Norton says the system as it is now is broken and frightening, and doesn’t protect children.
“A formalist reading of the law says the law is about the best interests of the children. But what are the best interests of the children? That’s culturally determined. And it’s determined by the lawyers and barristers and theatre performance on the day.”
One of her children was hospitalised during the case, suffering severe mental health issues.
“The public health system will only treat children if it’s a life-or-death matter because they can’t treat children who are subject to legal matter, it is a policy,” she says.
“Once [the child] was stabilised they were released into the care of an extremely welcome and credentialed psychiatrist. Then when [the child] was stable they said they couldn’t treat children who were subject to legal action.”
Norton has also lodged her own separate complaint about the opposing solicitors to the legal services commission, so that she can be notified of the outcome herself and be able to provide further evidence or raise further issues if required. In it she accuses the solicitor of “threatening, intimidating and abusive conduct”.
In September the law reform commission launched its review into the family court system.
At the time the attorney general, George Brandis, said it would focus on areas of key concern for families.
“These include ensuring the family law system prioritises the best interests of children, best addresses family violence and child abuse, and supports families, including those with complex needs, to resolve their family law disputes quickly and safely while minimising the financial burden.”
It will consider reforms to promote earlier and more cost-effective resolutions in family disputes.
Sarah Henderson, who sat on a parliamentary inquiry into the family violence and family law, told the ABC on Monday the inquiry found “many people were falling through the cracks”.
“The safety of children and child protection were key issues,” she said. “Some of the key recommendations were that family violence must be determined early in the proceedings. This ensures the right orders are made to protect children and too often that is not happening.”
Henderson said they recommended an initial assessment be made before any custody decisions and that shared equal parental responsibility should be abolished because it was being applied improperly and led to unsafe outcomes.
Some changes had already been made, including a stop to domestic violence perpetrators being allowed to cross-examine witnesses in court.
Norton says the system needs an overhaul but is sceptical of the law reform commission’s review.
“The problem is the culture of the court,” she says. “The system is … profoundly worrying. Lawyers apparently cannot investigate other lawyers. I know Malcolm Turnbull has referred it to the law reform commission but the law reform commission has done a whole swathe … of reviews on the family court and has achieved precisely nothing.”
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