Posts

‘Stubborn, wrongheaded’ approach to family law will fail

The federal government’s approach to family law will see it advocate again for a “bad law” to be passed by parliament, which it failed to pass in the last term, argues the Law Council president.

Speaking on Monday night at the Newcastle Law Society’s Annual Members’ Dinner, LCA president Arthur Moses SC said that we are “on the eve” of the government reintroducing the “fundamentally flawed merger bill”, which will see the abolition of the specialist Family Court.

“The government’s stubborn and wrongheaded approach to family law will see it advocate again for a bad law to be passed by parliament – a law which it failed to pass in the last parliament. This approach is not only irrational but is extremely disrespectful to the views of the significant stakeholders in the family violence services sector,” Mr Moses said.

“These dedicated professionals who understand this area better than any member of the government have made it clear that this policy will hurt children and families. As lawyers and members of our community, we all have a stake in this, regardless of where and what we practice.”

He reiterated that “specialisation matters” when it comes to addressing the inherent issues with the family law system.

“There is a dire need to resource and reform the family law system. We do not accept, though, that the way the government has sought to go about this would deliver meaningful reform,” he said.

“Last year, the Attorney-General announced in May a proposal to merge the specialist Family Court into the generalist Federal Circuit Court. There was no consultation with the community or the profession over the proposal – only with three heads of jurisdiction.

“The Law Council vehemently opposed the merger last year, and we will continue to oppose it because we do not support bad policy that will hurt children and families. With or without further amendment, we remain concerned that the merger will result in the loss of a standalone, dedicated Family Court as we know it, to the detriment of those in need of specialist family law assistance.

“Further, we do not accept the purported efficiencies it has been claimed the merger will produce. Rather, we are concerned it will further increase cost, time and stress for families.”

The merger fails, Mr Moses continued to alleviate the “fundamental problems plaguing the system”, including the risk of victims of family violence falling through the cracks.

“Abolishing a standalone specialist family court, whether directly or by abeyance, is no fix. Refusing to inject desperately needed funds and resources into a crippled system unless the parliament votes for the government’s plan is certainly no fix,” he argued.

“We are not alone in holding these concerns – they are shared by stakeholders and family violence support providers including Women’s Legal Services Australia, Rape and Domestic Violence NSW and Community Legal Centres.

Instead, the profession needs to retain a specialist, standlone family court, there must be “alternative holistic structural reform of the system”, and the government must adequately consult with stakeholders and carefully consider their recommendations.

“To suggest any one of these propositions is ‘radical’ is a fake argument. There should be nothing radical about the concept that critical social justice infrastructure should not be irrevocably altered without informed consultation and discussion with those who use the court, work in the court, or whose lives are irreversibly shaped by its decisions,” Mr Moses said.

Unusual to hire “junior junior” barristers to help with big cases?

Rookie Richard Howell once worked for Dominic Cummings on the Vote Leave campaign

One of the lawyers defending Boris Johnson in last month’s landmark Supreme Court case on the prorogation of parliament was only just finishing off his barrister qualifications at the time.

Richard Howell, who officially joined Brick Court Chambers last month after completing pupillage, was part of the government’s legal team alongside Sir Eadie QC and two heavy-hitting juniors. He had previously played a key role in the successful Vote Leave campaign to leave the EU, working closely with Johnson’s top advisor Dominic Cummings.

Former government lawyer Carl Gardner said that instructing a newly qualified barrister in such a high profile case was “surprising” and raised questions for the Attorney General’s office.

But the Attorney General’s spokesperson said that it was not unusual to hire “junior junior” barristers to help with big cases.

Howell, who was called to the bar in 2018, is listed in both the High Court and Supreme Court judgments in the prorogation case as one of four government counsel. The others were Sir James Eadie QC, David Blundell and Christopher Knight.

Eadie is First Treasury Counsel and handles the government’s most complex and sensitive cases, while Blundell and Knight are both on the Attorney General’s panel of preferred lawyers for government work.

The government can instruct “junior juniors” to do low-grade work without needing to recruit from the preferred panel. The Attorney General’s office told Legal Cheek that there was nothing particularly unusual about retaining a junior junior, but confirmed that the Attorney General had personally signed off the legal team.

Although new to the bar, Howell (pictured below) boasts an impressive CV. He graduated from Oxford with a first in history in 2014, took a distinction in the GDL in 2015 and an outstanding BPTC grade in 2018. In between, he worked as a researcher for the Vote Leave campaign and was said by insiders to be the brains of its research operation.

Patrick O’Connor QC had told The Lawyer “on what I have been told, the process of this appointment to the Prime Minister’s counsel team, in such a sensitive case, is surprising, and calls for explanation”.

Gardner told Legal Cheek “I think people are right to be asking questions about this, and that the Attorney’s office should answer them”.

A spokesperson for the Attorney General’s Office said: “As with any case of this magnitude, the Attorney General agreed the composition of the counsel team for Miller v The Prime Minister. As a junior junior, Richard Howell was supervised by First Treasury Counsel Sir James Eadie QC and other more senior members of the counsel team, David Blundell and Chris Knight”.

The Brick Court website says that “before coming to the bar, Richard worked for a year in politics, providing policy advice and assistance to cabinet ministers, MPs and peers”.

This is a modest description of what many say was a key role in the Vote Leave campaign.

Howell is described in the book All Out War, a well-reviewed account of the EU referendum campaign, as a “whizzkid” researcher nicknamed “Ricardo” by Dominic Cummings and other Vote Leave figures.

According to the book, Howell drafted part of Vote Leave’s application to be designated as the official Leave campaign by the Electoral Commission. Howell reportedly spotted a glaring error in the application form the night before submission — which might otherwise have allowed the Nigel Farage-backed Leave.EU group to become the official face of Leave.

Last year, Dominic Cummings mentioned Howell on his blog as one of Vote Leave’s key figures.

Howell officially joined Brick Court in “September 2019”, and was reportedly still completing his pupillage when instructed in the prorogation case. His practising certificate dates from 23 September 2019, according to the barristers’ regulator — one day before the Supreme Court handed down its judgment.

Brick Court Chambers has been approached for comment.