Fairbrother Russell: Family Courts Matters Bill — In Committee 
Fairbrother Russell: Family Courts Matters Bill — In Committee 
[Volume:646;Page:15696] 
RUSSELL FAIRBROTHER (Labour) 
: 
 Mr Chairman—[ 
Interruption 
] I accede to the request from the members on the opposite side; yes I will speak again. I want to talk about clause 45. 
Dr Paul Hutchison 
: Tell us more about horsehair. 
RUSSELL FAIRBROTHER 
: Horsehair! The member probably wears a horsehair singlet for all we know—the way he conducts his life. Clause 45 adds section 11A to the Family Courts Act 1980. Subsection (1)(f) refers to “support persons for a party on a request by that party:” and subsection (5)(ab) states that nothing in that section limits in any way the right of a person to have a McKenzie friend present. 
There is often a lot of misunderstanding about what a McKenzie friend may be and what a support person does. A support person is someone who is there for emotional support and comfort. The mere presence of that person in the court is sufficient. They do not take any part in the proceedings. They do not give advice to the person they are supporting. They are there merely as a form of comfort and security. That provision was introduced into our courts probably in 1975 in the Crimes Act in the sexual violation legislation where a support person was allowed to remain in court to support a witness but was never allowed to talk to the witness or touch the witness unless the judge allowed because there needed to be a moment for the witness to compose him or herself. That essentially is the role of the support person and in the Family Court there is no reason why it should be any different. 
That contrasts considerably however with a McKenzie friend. The term “McKenzie friend” floats around like the term “the Queen’s Chain”. People talk about it but very few people understand what it is. It is like the term “paper roads”. Everyone hears of paper roads but not many people know what they are. A McKenzie friend is a relatively new concept. We imported it from Britain as we did with most of our law both good and bad and a McKenzie friend is truly a product of the common law. The advisers point me to it first being cited in 1970 in the  
All England Law Reports 
 in the case of  
McKenzie v McKenzie 
 where I daresay the term arises from either McKenzie the plaintiff or McKenzie the defendant. It is not identified in the documents I have. 
A McKenzie friend is someone who sits in court and assists the litigant. One does not have a McKenzie friend if one is represented by a lawyer but if one is a lay litigant and is conducting the case by oneself without legal advice then one can have a McKenzie friend in the courtroom. That McKenzie friend can take notes fetch documents draw one’s attention to documents and whisper advice on what one should perhaps say or do or the questions to ask. But the McKenzie friend has no right of appearance. A lawyer has the right of appearance at the Bar and stands in place of the litigant but a McKenzie friend is never elevated to that position. The McKenzie friend has no right of audience. That means he or she cannot speak to the judge and the judge will not hear that person if he or she chooses to speak because the role of the McKenzie friend is a substitute for legal advice and is a method of advising the litigant party when he or she is on their feet of matters that should be drawn to the judge’s attention. That has to be done explicitly in a quiet way by way of whisper or the passing of notes. 
There is not much need for McKenzie friends in our Family Court system I have to say. This provision was put into the bill I think at select committee level because of the emphasis on allowing support persons to be present. It was therefore felt that to keep clear the role of support persons there should be mention of McKenzie friends. That is why subsection (5) of section 11A in clause 45 is amended to include a McKenzie friend. But when we think about the way Family Court proceedings are conducted there can be very few occasions when we can imagine that a McKenzie friend would be relevant. I guess in matrimonial property proceedings a struck-off lawyer could appear as a McKenzie friend and pass notes to a person acting for him or herself on what the law may be and the submissions they should make to the judge or the line of cross-examination. But in issues of care of children guardianship and the like the court operates an inquisitorial method. Accordingly the judge sets the tenor of the hearings and determines what evidence he or she wants to hear. Most of those issues are resolved at pre-hearing conferences and what is going to be led viva voce and what will be taken from the papers is predetermined before the court starts. 
A Family Court proceeding where a McKenzie friend may appear would be very limited because of the inquisitorial nature of the Family Court in the areas affecting the welfare of children and the well-being of family units that are suffering some dysfunction that brings the attention of the judge. Inserting a provision for a McKenzie friend in section 11A of the Family Courts Act is not in any way meant as an encouragement for litigants to appear unrepresented in the Family Court and to take with them instead a friend who claims to know the law or to know advocacy well enough to advantage the litigant who wants to represent him or herself. The matter is included there really to clarify what is meant by “support person” rather than to give carte blanche to those who want to be backyard lawyers or who think they can reform the world without a law degree. When one gets a law degree one realises how difficult it is to reform the world and one in fact withdraws from that impetus that took one to law school in the first place. 
So the McKenzie friend is a very very specialist role. It is a relatively new role. It is one whose parameters are clearly defined by the common law and this amendment in the Family Courts Matters Bill is in no way intended to change that definition or to give more power to backyard lawyers who want to help litigants who want to appear unrepresented in court. Of course there is an old saying Mr Chairman as you would well know that he who acts for himself has a fool for a client.