Through the latter half of the twentieth century, as more than half of all marriages came to end in divorce, the belief that family law in Australia was overwhelmingly tilted against fathers and that this hostility was doing massive harm to parents and children alike became an accepted truth amongst a significant section of the population, including traditional Christians and others of faith.

Equally, such claims were the subject of denial from the mandarins who administered family law and greatly benefited from its administration.

With the introduction of no fault divorce in the 1970s, the Family Court was originally created as a so-called “helping court”, a progressive institution carrying out long overdue reforms.

Reforms to family law enacted in the 1970s were hailed as major steps forward in the fight for gender equality at home and in the workplace In reality the world’s Family Courts have harmed the lives of as many women as they have men. They have also done great damage to children under the masquerade of that great legal falsehood: “The best interests of the child”.

Dads On The Air was fond of claiming it was “the most dishonestly used phrase in Australia today”. Australians of the day were yet to hear the corporatist phrases “safe and effective” or “cheap and reliable”.

Despite the Attorney General Lionel Murphy’s vision of a “helping” court when he brought no-fault divorce to Australia in 1975, cooperative parenting after divorce was rarely encouraged. He may well have been of good motive. It didn’t end that way.

As one of our guests, the greatly admired Australian historian John Hirst wrote in his compelling book Kangaroo Court, far from being a helping institution, as the years rolled by the Court became both feared and hated. He said: “I cannot see the way by which the Court can be rescued. Until there is fundamental
change, it will continue to give offence.”

Hirst became a great friend of the show, coming into the studio when he was visiting Sydney from Melbourne, and coming out to dinner with myself and my kids.

“When Family Court judges talk piously of the ‘caring court’, I wish they could hear the roar of pain that their piety has caused,” he wrote.

In language surprising for such a stringent and well respected academic he wrote that a court which saw itself as looking after the best interests of children, instead acted as a child abuser, a gross abuser of human rights, and as a monstrosity that was not a court of justice.

He told the ABC: “It was when a student of mine was involved in a family law business and I was appointed by the court to be his official supervisor that I became aware at close quarters of the sort of experiences that the court metes out, because this young man was accused by his wife of being a danger to his children and yet I only had to be with him for half an hour when he was playing with his
children to see that he was no danger at all, in fact he was a wonderful dad.

“But for six months he was sort of on trial, he had to be examined psychologically, go to a psychiatrist, have anger management, so his experience is quite a common one, that accusations are made very, very easily in this court, and then people have to prove that they’re okay. And I don’t think this is a good system, I think accusations are made too freely and are taken too seriously without any
preliminary checking of them.”

The adversarial nature of family law encouraged false accusations from the earliest days of its formation. Changes which have set in since the turn of the millennium ensures there is no consequence for making false accusations, at least on the mother’s part, and has simply made the situation worse.

In its playing out, in practice no fault divorce in an adversarial system simply meant all the fault was placed on dads. In a “he said she said” jurisdiction, the words of fathers were routinely depicted as the voice of the patriarchy. If they attempt to correct the record they are readily described as using the family law system to abuse their former partner.

Family law became little more than a criminal assault on half the population, a justification for stripping men of their assets, their dignity and their purpose in life. The high suicide rate amongst separated men was of no concern to the perpetrators.

Almost from the minute the Family Court opened its doors it became a law unto itself, imposing sole mother custody on separating families despite the harm it caused for everyone involved, mothers, fathers and children.

It’s hard to believe, as we head into 2025, that Australia’s Family Law Act, the most impactful and destructive legislation to ever pass the parliament, began with such apparent optimism and goodwill.

Here is a short extract from John Hirst’s Kangaroo Court summarising this early history: “The Family Law Act of 1975 which established the Court was a progressive social reform of the Whitlam Labor government. It was not an exclusively government measure; members on both sides were allowed a free vote and Liberals had been among those working for divorce law reform. The Act removed fault as a ground for divorce and replaced it with irretrievable breakdown, to be indicated by a one-year separation.

“The aim was to allow couples to part without the trauma and contrivance of one partner proving fault against the other. Marriages would be buried decently and humanely.

“The business of dividing property, arranging maintenance and determining custody of children would remain, but these were to be settled in a simple, flexible and inexpensive way. Litigation was to be discouraged and the Court was to be staffed by social workers and counsellors as well as judges. It was to be a court of an entirely new sort, a ‘caring court’ or a ‘helping court’

“If proceedings were to be simple, flexible and cheap, why, say the wits, were lawyers put in charge of them? Proceedings quickly became complex, rule-bound and expensive.”

A caring court in the hands of lawyers? What were they thinking? They’ve been lying to you ever since