'Defending the Family' by Outing teh Sinful and teh Gay

Professor Alastair Nicholson, Former Chief Justice of the Family Court, has written to the federal Attorney General, Robert McClelland, advocating that the services of the Family Court be extended to gay couples:

On the eve of moves to end discrimination against gay couples across a range of federal laws, former Family Court chief justice Alastair Nicholson has written to federal Attorney-General Robert McClelland to urge a further shift in family law.

The reform would give gay couples access to the cheaper specialist court and its mediators — instead of being forced to spend tens of thousands of dollars to resolve disputes in the Supreme Court.

Under current laws, de facto heterosexual couples are also denied access to the Family Court. In the letter, obtained by The Age, Professor Nicholson argues the reform would ensure more cases are settled at mediation without trial. (Misha Schubert in The Age)

The Sydney Morning Herald carries a slightly different version of Schubert's report, obviously obtained from the same wire service that syndicated it to The National Rupert and other Murdoch organs:

Gay couples who are separating should be allowed access to the Family Court to settle property disputes, the court's former chief justice has urged.

In a letter to federal Attorney-General Robert McClelland, former Family Court chief justice Alastair Nicholson said Family Court protection should be extended beyond married couples, Fairfax newspapers reported on Thursday.

It seems safe to infer that Professor Nicholson isn't just calling for the extension of Family Court services to same sex couples - he wants the services extended to cover straight de facto relationships too.

Because Professor Nicholson isn't a journalist, but a former judge turned academic and hence not up to the task of producing lucid writing for the Age readership, because his proposals aren't particularly newsworthy in their own right but mostly because it's not enough to just report these things, you have to get a range of reactions for and against, Schubert has done the usual ring around, canvassing the opinions of Australian Coalition for Equality spokesman Rodney Croome, Australian Christian Lobby chief Jim Wallace and Gary Singer, the deputy Lord Mayor of Melbourne.

The reason Gary Singer was included in the ring around is that right now he's in the middle of a Supreme Court dispute after a break up with his gay partner. Apparently it's a 'high profile court battle' so now I shall have to dive into Google News to catch up on it - I've obviously been skipping some key pages of my morning paper over the past few weeks. Singer is in favour of Professor Nicholson's proposal:

"One of the problems with being under state law is that your file is open to the public so anyone can access your file and read the affidavits and material in your file," he said. "When people break up, they say nasty things about each other — that exposure doesn't happen to other people."

Whoops. I think I've just picked up a bit of a complicity problem there.

Jim Wallace, as you might expect, is against the extension of Family Court services to same-sex couples:

Australian Christian Lobby chief Jim Wallace said he had strong concerns about giving Family Court access to gay couples without children because it undermined the traditional model of family. But he said there was a case for gay couples with children to have access to the specialist court to ensure the best interests of the child were protected.

Somehow, by the time the syndicated version of Schubert's report hit The National Rupert Wallace's views had moderated a little:

But Australian Christian Lobby chief Jim Wallace said while giving Family Court access to gay couples without children undermined the traditional family model, those with children had a case for Family Court access to ensure the best interests of their children were protected.

It will be interesting to see whether Wallace moderates his position any further, or whether this was merely a temporary lapse and he'll go on to insist that far from having access to the Family Court, those who live in sinful unconsecrated unions and really sinful unions with members of their own sex will just have to go on taking their chances with washing their dirty laundry in the public forums of the Sate courts.

The Law - not a Complete Ass After All?

The case of Thomas Towle, recently convicted of six counts of dangerous driving causing death and four of dangerous driving causing injury is back in the news, with today's Age carrying reports on the sentencing and reactions to it. The Age also provides a link to this transcript of Justice Philip Cummins' sentencing remarks.

True to previous form - when the Towle jury found him not guilty of the more serious charge of culpable driving - The Age has focussed its coverage on the grief of the families of Towles' victims, pitching the story as human interest. It's not alone - a Google News search turns up plenty of reports on the Towle case, from both our major newsprint suppliers.

I don't intend to discuss any of these reports in this post - I'll be sticking to the transcript of the sentencing. The media spin on the story is familiar - it's an obvious outrage, a scandal to society and so on and so forth. And to help convince us of that, once again, the grief of the families of Towle's victims is to be made a public spectacle. None dare call this exploitation because it's being done by the most reputable of journalists, with the consent and participation of the families themselves. It's all in the public interest, too. That's why the case is getting so much coverage; it's got nothing to do with advancing careers or boosting circulation, or audience share, and hence advertising revenue at all.

Cummins J begins his sentencing with this simple statement:

1 This is a most tragic case.

That's where you would stop if you were looking to verbal Cummins J to depict him as an unfit judge, out of touch with community standards like all too many of our judiciary, because in his next remarks he makes it very clear where he believes the responsibility - the blame if you insist - for this tragedy lies:

2 Six loving and loved children, on the threshold of adulthood and with their lives before them, have had their lives taken from them. Their grieving families have been left distraught and devastated. Four more children have been seriously injured and will always bear the trauma inflicted upon them, as will their families also. A whole cohort of good young persons have been traumatised and afflicted. All because of your criminal and dangerous driving, Mr Towle. (emphasis added)

After reviewing the facts of the case, the judge delivers a few remarks that might indicate a slight difference of opinion between judge and jury on the culpable driving charge:

12 A most serious element of your criminal driving was not physical but psychological: you knew that there were, or were likely to be, numerous children in the area of the party house. You knew that they were, or were likely to be, a couple of kilometres (1.8 kilometres in fact) along Myall Street going east from your brother’s house, because you had just traversed it going west. You knew they were, or were likely to be, not far from the two curves in Myall Street, because you had just been there. You had just been reminded of it by your younger brother. Your knowledge that there were, or were likely to be, numerous persons in the relevant area is an especially egregious element of your dangerous driving, Mr Towle.

13 This is not a case of unexpected circumstances. This is not a case of a momentary lapse of attention. This is a case of multi-faceted lack of attention at high speed at night and with knowledge of risk. And with terrible consequences.

14 The jury found you not guilty on all counts of culpable driving causing death (counts 1–6)[2] and of negligent driving causing serious injury (counts 7-10)[3], as well as the other counts, and found you guilty on the alternative counts to counts 1-10, namely dangerous driving causing death or serious injury.[4] It is for those dangerous driving offences that you are to be sentenced, Mr Towle. It is essential that the sentences, and the facts found in sentencing, are consistent with and faithful to the jury’s verdicts. The proper construction of the jury’s verdicts, in my view, is not that the jury were not satisfied of the constituent driving elements alleged of speed, inattention and knowledge, but that the jury characterised that driving – not the consequences, but the driving – not as gross criminal negligence[5], but as dangerous. I proceed on that basis. (emphasis added)

When Justice Cummins turns to the principles of sentencing that he will apply to the case (starting at section 20), he gives the impression that he's scraping around for enough bricks to make up at least a decent fraction of a ton:

23 By operation of law, those sentences are to be served concurrently unless I order otherwise. Therefore I turn to the question of cumulation of these sentences.

...

25 ...There is no principle of law or of logic which requires that in the case of multiple offences arising from the one course of conduct, the total sentence must be no more than the maximum legislative penalty for one of them. To require that the total be no more than the maximum for one would indeed reduce human victims to mere numbers; or, in the words of the illustrious President in DPP v Solomon, to a “meaningless statistic”. Neither parliament nor the courts so reduce people...

The rest of the judgement consists largely of Justice Cummins' reasons for arriving at a final sentence (with cumulation for some of the offences) of 10 years imprisonment with a minimum of 7 years before parole. The question of whether this might be overturned on appeal I leave to the law bloggers.