Chapter Two: A Little Bit Of History
On the 5th of January 1976 the Family Law Act 1975 came into effect It was passed into law by just one vote This marked a controversial and historically significant turning point for Australian family life Making contentious changes to the law relating to marriage, Australia had introduced no fault divorce For the first time, married couples could seek a divorce by demonstrating a separation of 12 months duration.
The single ground of irreconcilable breakdown was controversial in the early 1970s and much of the lengthy parliamentary debates were dedicated to the abandonment of fault in divorce proceedings. Traditionalists saw it as an assault on the institution of marriage.
The Family Law Act of 1975 also created the Family Court of Australia to interpret and apply that law and with the stated aim of ensuring matters of family breakdown, separation and divorce were managed in a more family friendly manner. It would prove to be one of the most hotly debated and often despised pieces of legislation in Australian history.
The Family Court has jurisdiction over all marriage-related cases in all states and territories of Australia, except Western Australia which has its own family court Its jurisdiction covers applications for declarations of the validity or nullity of marriages, divorces, residence, contact, maintenance, child support and property issues It also has jurisdiction over de facto couples and parents who have never lived together.
The only avenue of appeal for the Court’s often arbitrary decision making was to a Full Bench of the Court, an extremely expensive, complex and more than likely pointless exercise.
Conciliation and counselling services were originally designed into the Family Court’s structure to assist the dissolution of marriages in a less hostile manner than previously This service quickly fell foul to accusations it was little better than a lesbian or feminist cabal. Whatever the case, many fathers reported extreme dissatisfaction Those same counsellors, originally intended to be so helpful, were later to become the subject of much hostility from fathers’ groups for their frequently alleged bias.
Children’s custody matters were to be determined with “the best interests of the child” as the paramount consideration and all matters coming before the Court were to receive individual attention specific to the parties’ unique circumstances. As previously stated, “the best interests of the child” was a nebulous legal term which could mean more or less anything, depending on the bias of the beholder.
A government media release described the initiative as “sweeping away the laws and procedures of the past and providing a new era of calmness and rationality, presided over by specialist judges assisted by experts and which would introduce speedy, less expensive and less formal procedures”.
Seen through the lens of half a century of fraught litigation, devastated parents, a ballooning welfare budget and the close involvement of Australia’s legal and political establishment in the debacle, these assurances appear utterly naïve.
The original intention of the Family Court of Australia was, allegedly, to improve the manner in which separation and marriage dissolution had been previously managed.
Underlying the vision of the Family Law Act, its architect, the late Senator Lionel Murphy, claimed the court would operate on principles supporting humanitarian values The Court was to be a ‘helping’ court. The need for improved access to justice was also identified as an aim.
The Court’s processes were to be less formal, services were to be provided to remote areas and child-care was to be provided for parents using the Court’s services. In a speech to the Federal Parliament in March 1973, Senator Lionel Murphy said, “When a family is broken up, when there is a divorce, at least let us enable those people involved to solve their differences in a decent human and dignified way, and without their being subjected to this kind of expense.”
As it evolved, the court, with its extensive delays and elaborately complex and overly- legalistic procedures, was light years from this aim. Hansard’s record of the debates surrounding the Family Law Bill demonstrated the intention of the parliament to establish a child custody regime which would see the care and upbringing of children equitably shared between separating parents.
In a parliamentary debate in October 1974, the late Senator Alan Missen explained that the Family Law regime would “create the concept of joint custody under the law”. Original lofty intentions were rapidly lost. Appeals to the High Court case forced the Family Court to act like a normal court and emphasised the importance of traditional legal practice rather than “palm tree justice”, thus locking the adversarial trial system into place.
Parliament’s intention that the Family Court would operate with less formal processes and as a “helping court” collapsed, leaving two of the original presumptions of Parliament in passing the legislation undelivered. Instead separating couples had to slog it out in front of a judge, often creating an enduring bitterness. False accusations of domestic violence, for which the court became infamous, fuelled the fire and helped destroy the morale of the nation’s police.
Nor was the notion of joint custody proposed by the original proponents of the legislation ever realised, with the feminist orientation of its early personnel leading to sole mother custody as the standard.
The appropriateness of adversarial trials was the subject of debate throughout the life of the court. The sight of separating couples locked in protracted battles they could seemingly not escape became all too common. Critics argued that the wild claims separated couples were encouraged to pitch against each other and the high conflict it generated between parents meant adversarial trials themselves were against the best interests of children.
The Shared Parenting Council’s submission to the 2003 inquiry summed it up thus: “Every year or so, a Family Law Amendment Bill is passed by the Federal Parliament – each one seeking to rectify problems identified in previous inquiries. Without exception, there has been a Legislative failure of Family Law Amendments to achieve outcomes that resemble the system originally planned and designed by the Late Senator Lionel Murphy and introduced by the Whitlam Labor Government in 1975.
“The majority of Australians have determined that the Family Law Courts are biased, unfair, expensive, incapable of dealing with family matters in a timely and orderly manner, and of more concern, expose children to risk of abuse or harm.
“Similarly, we have an overwhelming majority of Child Support Agency ‘clients’ bitterly complaining that the Agency has destroyed their lives.
“How is it possible that review after review, amendment after amendment, reform after reform, have so clearly failed to achieve a system of fairness, justice, and equity in family breakdown situations.
“It is fair to say that the Family Law Act and the Family Court are a failure of public policy, a failure of legislative intent and a failure of the implementation of the will of Parliament.”
OTHER EXTRACTS
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