What about Judicial Finality in Australia? We Ask for Your Input on the M and M Case

by Mary W Maxwell, LLB

Just today, it happened that a great Constitutional scholar in the US, Professor Louis Fisher, directed me to his new book that refutes the notion of Judicial Finality.

I am not referring to the legal doctrine of stare decisis — “the decision stands” by which, say, a convict cannot get further relief after all appeals have run. I am referring to the idea that when the US Supreme Court has interpreted the Bill of Rights, or any clause in the Constitution, it is final and no one can change it — except the Supreme Court itself somewhere down the road, on a new case.

In Australia we have Parliamentary Supremacy. Thus, a High Court decision can be overthrown by the legislature. The very day after a Court ruling, Parliament can change the law to suit.

Professor Fisher argues that Finality is a mistaken belief in the US and that the president and Congress (hence, the people) can, and sometimes do, “guide” the Court to a change of mind.

I want to address here the larger question: Is a court decision so sacred, so full of deep meaning, that it cannot be overcome by the population?  The reason I am bringing this up, as you can probably guess, has to do with our Australian problem of desperate protective parents.

Kindly step away from the legal question for a moment and watch this video. At 1.50 minutes into the tape, the mother elephant gives birth. The baby elephant, wrapped in its placenta, drops to the ground.  By 2.01 minutes, lions are already approaching, presumably with an eye to stealing the little bundle.

But by 2.12 minutes, other adult elephant start to gather around to protect the newborn. It must be instinct that causes them to rally round.  I am wondering if our species has that instinct. If Nature has provided it for one mammal species, then perhaps for many others, possibly including humans.

That said, I return to Fisher’s persuasive argument. Let’s just take the famous Dred Scott decision of 1857. Gumshoe carried an article on it about six months ago.

A slave named Dred Scott ran away from his master, Sanford, and Sanford brought suit to reclaim him. Who do think won?  Sanford. It was a complicated matter involving whether Scott’s detour into a free state had caused him to be liberated. Justice Taney made the ruling. But it was later considered a wrong ruling — of course.

Other cases cited by Louis Fisher are the flag salute cases, mandatory sterilization, and Bradwell v State which invoke divine ordinances to prevent women from practicing law!

She’s a Grand Old Flag, However…

The first Flag salute case was Minersville School District v. Gobitis.  It was decided that children could be compelled to salute the red, white, and blue daily as part of classroom ceremony. The public made a stink. (That is they “guided” the court.)

Soon another flag case arose. (I think sometimes it is very convenient for a case to “arise.”) Here a family of Jehovah Witnesses found that if their kids did not salute the flag, the kids could be sent to reform school and the parents could be arrested.

The same Supreme Court judge,  Justice Robert Jackson, who had found in Minersville that a coerced the flag salute was constitutional, now found it to be unconstitutional. Five brethren agreed. Hence the dad won: Walter Barnette v West Virginia State Board of Education, 6-to-3, in 1943.

Louis Fisher opines:

“Judicial review does not mean judicial finality or judicial supremacy. It was never the intent of the Framers to vest final or exclusive authority in the Supreme Court on constitutional interpretation. The Court has never functioned in that manner. As with other branches of government, the Court has its highs and lows, contributing to individual rights and freedoms in some cases while undermining them in others. It is fully capable of making errors.”

(from a March 20, 2018 article in The University of New Hampshire Law Review, Volume 16, Number 2, “The Claim of Judicial Finality: Theory Undercut by Experience.”)

Now to the Mums

Your Gumshoe staff may have started out as news conveyors, or whatever, but we got roped into a severe problem and have not been able to ignore the pleas of protective parents. Their kids get snatched away by the Family Court and handed over to the very parent who has abused then, and even threatened to kill them.

Since 1988 there has been a High Court issue over the way to interpret the Family Law Act’s provision for judges to consider the safety of the child. This occurred in the M and M case, which I don’t mind calling “the Dred Scott case” for purposes of this argument.

The M and M judges held that in custody disputes no action will be taken to determine the truth of an allegation of abuse by one parent against another. My Gumshoe article of June 4, 2019 had much to say and I will quote it at length here, eschewing quote marks as I am unlikely to sue myself for plagiarism (unless I really need the money).

Precedent Is Not from God, OK?

A precedent means that the requisite number of judges on a High Court reached such-and-such a conclusion about the matter before them. It does not mean a divine light shone upon them. [I wrote that before seeing Fisher!] We can now discuss the case of M and M. First a recap of the problem:

1. Mum discovers Dad has sexual attraction to their kid.
2. She reports it to some authority – could be a doctor, a policeperson, or one of the advertised helplines such as “Child Safety.”
3. The minute she opens her mouth she is in trouble. She, not he, will be blamed. He, not she, will get sole custody of the child(ren). The poor kids will more or less lose their mum. (This is not an accident, Folks, it is well planned.)
4. She will also be vilified, such as by social workers and court reporters. Either they will concentrate on the “fact” that she is a nut job (delusional, out of her mind, etc) or the “fact” that she has harmed the child by persuading him or her that abuse has taken place. She is bad, bad, bad.

Family Law Act of 1975

As we know, the 1975 Family Law Act set up a special court to deal with marriage, divorce, child custody, and property settlement when couples break up. Section 60CC of the family Law Act  guides a judge as to how to award residence (formerly known as custody) to one parent or the other or perhaps to both.

Start with this quote from M and M, 1988:

“But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.

“Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. [the authorities for that point]

“In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.”

If the bench in M and M had left it at that, people would, I hope, move logically to the next thought:  “Since the family court can’t deal with allegations of crime (child sexual abuse is a crime, isn’t it?), the court needs a mechanism to get that matter sorted out per all the excellent apparatus a judiciary has in criminal matters.”

For example, it could shut off its decision-making about residence until the allegations are proven or disproven. And here would the truly slandered father have his day in court.  Instead of tossing a coin as to the man’s guilt, he could defend himself with all due process protections.

As for the kids whose testimony (known as “disclosures”) need to be checked, there are ways to do it. Interviewers can be trained to recognize when a kid has been coached..

Plus there is photographic evidence, blood tests, etc. There is no more risk than in any trial that a wrong verdict will come about.

Here Comes the High Falutin’ Talk in M and M

(Note: in these passages all bolding is mine.)

“In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J v. Lieschke.

[I can’t wait to show that passage to Andrew McIntryre or his sister Rachel Vaughan. They had to fear their Dad right up until he died in November 2017 when they were middle age! And they could get no police to intervene.]

“Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.”

[Absolute pure unadulterated bullshit.]

“The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. “

Supposed need?  It’s a real need.  No mother should allow her 4-year-old boy to go to the home of a pedophile.

“The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.”

Pause.  Big pause.  What did the High Court just say? Well for one thing, it threw in a phrase that makes all attorneys feel at home: “balance of probabilities.” Let’s hear that sentence again without that warm and cuddly phrase. I’ll reword it (but remain faithful to the message – honest):

[Reworded]: The 1975 Act gave judges a responsibility to put on the old thinking cap. It also (especially in the 2006 amendments) underscored the paramountcy – yes paramountcy no less – of the child’s best interest.

Apparently, the overriding principle here is “Don’t get yourself embarrassed at the Bar association cocktails by having been seen to focus on the allegation of child sexual abuse, even if the kid’s penis had fallen off from overuse.”.

Zooming in on “Unacceptable Risk”

You may think 1988 is ancient history, but in the 1993 case of B and B, the Full Court of the Family Court (which is not the same as the High Court of Australia) paid homage to M and M.

Granted the B and B quote goes on to say:

“The test [they love tests] propounded by the High Court in M and M and which is authoritative in this jurisdiction, is: “that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse….”

The High Court noted that even a supervised contact can disturb the child – as loads of Protective parents will tell you today.  A few years ago the ABC Four Corners show broadcast a video of a boy, whose visitation took place in a public park – he spent the whole hour up a tree.

M and M: “there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her” (ahem, ahem).

B and B: “Therefore, if supervised access poses an ‘unacceptable risk’ of harm (or ‘disturbance’), whether physical, emotional or psychological, it should not be granted.” Thank God.

In N and S (1996) Justice Fogarty discussed the issue of unacceptable risk in sexual abuse cases. He said:

“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of events alleged to have taken place? … Over what period of time have the allegations been made?? ….What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse?”

Pardon me if I read that last sentence cynically to mean “Can we dispose of the abuse by a justification?”  In the Liberti v Livberti case in Connecticut, a dad who was always massaging his son’s thigh was said to be treating his hamstring. Sure. And today I read an Australian case, Mandel v Blum, in which the Dad satisfied the court by his explaining that he gave his child a suppository “to allay a fever.”

Dear Reader, Your Guidance Is Needed

Back to the elephant solidarity routine.

Surely a group of parents can intervene against clearly wrong orders of a court to help their neighbor and the kid.  In a recent article I asked for such folks to issue “chits” with which to rescue a judicially kidnapped child (as I call it in my 2019 book Reunion).

Today, in the spirit of Professor Lou Fisher, I ask people to wake up to the fact that a court is not infallible. Take heart from what Justice Felix Franfurter wrote in a dissenting opinion in Solesbee v Balkcom (1950):

“…the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history.”

Go, elephant!