Australia: Family Court merger an attack on women's rights

By Sue Reilly

March 19, 2021 — Links International Journal of Socialist Renewal — The federal government has finally achieved its aim of abolishing the specialist Family Court by merging it into the broader Federal Circuit Court in mid-February. It was a carefully planned move, put together after several failed previous attempts by past and present federal governments to abolish this court. 

Several specialised reports into the Family Court have been undertaken, including one by the Australian Law Reform Commission (ALRC), which was delivered to the government in March 2019. The report was drafted on the basis of broad consultation with submissions from 440 stakeholders made over three rounds of consultation, and generated 60 recommendations. It has, however, never been publicly released. 

Despite this, the government instead chose to commission accounting firm PricewaterhouseCoopers (PwC) Australia to hastily produce a report with very limited terms of reference, little consultation and which focused on financial rather than law reform issues.

What is the Family Court? 

When Gough Whitlam’s Labor government was elected in 1972, it undertook measures to implement major improvements to the situation facing women. 

The legal situation for women, along with recognition of citizenship for all non-indigenous people, was established shortly after federation. But women’s economic and social equality was not. Their earning capacity was set by the Harvester decision in 1907, when the family wage was established for men as the minimum required for a worker and his family to survive. Five years later, it was clarified that a woman’s wage was 54% of their male counterparts, no matter her work circumstances. This established a woman’s role within the family as providing domestic support for her husband, viewed as the head of the family. 

Over time, and especially spurred on by women entering industries as men went to fight in World War II, the wage situation for women improved. However, once the war ceased and men returned home, women were forced out of what were deemed “male” jobs. From World War II to the early 1970s, women received 75% of the male minimum wage. 

In 1966, the bar requiring married women to only work in temporary positions in the federal public service was lifted. This bar had essentially prohibited career progress for women as promotion depended on permanency. In 1974, the basic (minimum) wage for women rose to 100% of the male rate, but industries remained extremely sex-segregated. 

The family law bill was introduced by the Whitlam government in 1973 and passed a year later. As a result of this, the Family Court of Australia was established in 1976 as a second federal court by Prime Minister Malcolm Fraser, sitting alongside the Federal Court of Australia which was also established that year. Elizabeth Evatt was appointed as the Federal Chief Justice of the court.

The Family Court set the framework for the dissolution of marriage: a no-fault divorce based simply on the breakdown of a marriage. This represented a sharp break from the previous patriarchal and punitive legal framework under which women had no financial independence to open a bank account and needed a male guarantor to purchase a car or house and rape in marriage was not recognised by the law.

Where there were no disputed parenting issues, such as financial support, property distribution or arrangements for children, the court essentially played no active role. But where such items were contested, the Family Court prioritised the best outcome for children in its considerations. This was especially the case for situations involving physical violence and sexual mistreatment of children or violence against their mothers – what became known as domestic violence.

The establishment of the Family Court was accompanied by the introduction of specialist staff training, mediation and counselling. Litigation was discouraged and judges removed their wigs, all of which ensured a more informal and less painful and expensive experience for couples. 

The Family Court bomber

Evatt resigned from her role in 1988, due in part to a string of bombings and shootings targeting judges and other people associated with the court at the time. It took about 40 years for the perpetrator of the bombings to be brought to justice. 

Leonard John Warwick, known as the “Family Court Bomber”, was arrested by police in July 2015. He appeared before Justice Peter Garling in the NSW Supreme Court in May 2018, in a trial that was scheduled to last six months. It dragged on, however, for 2 years before he was convicted last July. 

Warwick was charged with 24 offences committed in Sydney including: the murder of a judge and another’s wife who had also worked for the Family Court for 7 years as a counsellor; the bombing a Jehovah’s Witness prayer hall in which the Speaker was killed and members of the congregation were injured; the shooting of his wife’s brother; and the bombings of court premises, judges’ homes, cars and other venues between 1980-1985. The 73-year-old was found guilty of all charges except the shooting murder of his brother-in-law, and given three life sentences without parole last September. . 

Early on, Warwick changed his method of murder from shooting to bombing. His father was experienced in bomb-making, having been a coal miner in Helensburgh, south of Sydney. To some degree, the time delay between the crimes and his arrest was due to the issue of evidential proof. If you shoot someone, you are more likely to be observed by others committing the crime. But if you plant bombs, the method of attack can destroy evidence of your complicity. 

However, the development of more effective forensic testing of evidence and critical evidence, including DNA samples, obtained from Warwick’s break-in and bombing of the Jehovah’s Witness Hall - punishment for having helped his wife - were key to securing his conviction.

A third Federal Court

The election of the John Howard Coalition government in 1996 led to a change in the federal court structure. Howard took the position that special women’s services, greater labour force participation and government information gathering to measure the state of women’s equality were no longer needed, as women had attained equality. According to Howard, it was now men and boys who faced disadvantage, particularly in the Family Court. 

In December 1999, Howard established the Federal Magistrates Court, which was later renamed the Federal Circuit Court (FCC) by Labor in 2009. It became operational in mid-2000 as a generalist court. It extended the federal court structure from two to three courts, with the aim of dealing with the expanding backlog of cases from the two existing jurisdictions. It sought to do so by taking over less complicated cases of family law, as well as hearing cases dealing with migration, industrial and bankruptcy matters. 

Since then, the FCC has expanded hugely into family law and child support, with a brief to operate informally and use streamlined procedures. The complexity involved in contested negotiations over children has often led to major delays, as jurisdictional shifts have been required between the two court systems. In 2006, Howard reformed the Family Court to give the presumption of shared care of children after separation, though how this was to be interpreted and put into practice was complex, disputed and misunderstood.

Recent moves 

The Malcolm Turnbull Coalition government announced in May 2018 its resolve to combine the Family Court with the FCC, with the FCC judge as single chief justice, to facilitate the resolution of some 8000 extra cases. Over time, this was to lead to the phasing out of one these two jurisdictions. It was argued that the move would efficiently reduce the backlog of cases in Family Court, some of which had been delayed for years. In reality, the biggest factor in the backlog was the lack of funding and appointment of judges and officials to the Family Court, necessary for its effective functioning. 

Behind the proposal to merge the courts was a politically perverse decision to undermine the special brief and work that the Family Court was created to deal with. The rising exposure in society of domestic violence against women and children that had enraged “men’s rights activists” and right-wing religious pressure against the Family Court were key factors in pushing the Turnbull’s government in this direction, though ultimately it was unsuccessful. 

In April 2019, the Scott Morrison Coalition government sought a similar merger, proposing to abolish the Family Court as a stand-alone court and merge it into the lower-level FCC. But federal Attorney General Christian Porter failed to get the issue voted on in the Senate on the final sitting day before the May election. The government was, however, successful in converting the process of recruitment for a judge from a rigorous peer review to the attorney general being able to offer the position without any such process taking place.  

Morrison set up another enquiry into the family law system, with Senate approval, in September 2019. It was co-chaired by Liberal MP Kevin Andrews and One Nation Senator Pauline Hanson, neither of whom have expertise in family violence issues but both of whom have expressed concern about the Family Court system. The inquiry, which was set to last a year, was to focus on the “systematic failures” of the Family Court. It handed over its report last October. 

At the time, Evatt publicly commented that it was appalling that the government had appointed people to lead the inquiry who had ready-made attitudes and opinions of supposed Family Court bias against men, especially those loudly and vigorously expressed by Hanson, without any basis of evidential proof. According to the Australian Institute of Family studies, fathers who go before the Family Court retain visiting rights in 97% of cases. Andrews has also been very vocal about his strong, almost evangelical, pro-marriage views.

The committee for the inquiry did include independent MP Zali Steggall, who was a barrister specialising in family law before entering parliament in the May election. She was firm in her view that the review would be thorough, balanced and sensible, with representatives from other political parties also on the committee.

Among submissions made to the committee was one by Save the Children Australia chief executive Paul Ronalds, who argued family law was still not dealing with child protection issues “adequately or appropriately”, particularly when it came to the issue of shared parental responsibility.  

Separated parents are entitled to equally shared parental responsibility. But this means each parent should get an equal say in major decisions about their children, but not necessarily equal time with them. The ALRC report found that this was often being misinterpreted to mean both parents should see the children the same amount of time. Although this assumption does not arise in cases of known abuse or violence, Ronalds said that presumption harms children by “leading them to be placed with parents where such contact is unsafe”.

The ALRC report, which cites 22 state and federal government-sponsored reports drafted over the past decade, has had none of its recommendations addressed. The report points to a problem of chronic lack of resources and funding to effectively train judicial resources such as judges and registrars, court based social services professionals including Family Consultants and Indigenous Liaison Officers, and legal aid services such as independent Children’s Lawyers. When the Family Court was established, all of these issues were dealt with in-house, but over time these services have been reduced and privatised.

Lack of funding is not just affecting the family law system. There have been huge cuts to Legal Aid across the board, including for family law matters, by state governments. Women who were experiencing domestic violence have failed to get affordable legal representation in the Family Court. 

Rise in domestic violence 

At the same time as all this is occurring, the level of violence against women and children remains staggering and ongoing. Most people know about Rosie Batty and her ex-partner’s murder of their son Luke at cricket practice in 2014. This led her to actively campaign against family violence, for which she won the 2015 Australian of the Year award.

Other murders that have highlighted the need to act on this issue are:

• Brisbane, Queensland, February 2020: Rowan Baxter doused his estranged wife Hannah Clarke and three children in an accelerant and set them alight as they sat in a car. All four died as a result of the incident, while Baxter fatally stabbed himself at the scene of the murder. 

• Sydney, New South Wales, July 2018: John Edwards shot his two teenage children at their new home after his wife took out an Apprehended Violence Order (AVO) against him and left with the children in 2016. He then killed himself on returning to his home.

• Margaret River, Western Australia, May 2018: Peter Miles killed his daughter, her four children, his wife and himself after a long and protracted child custody dispute.

• Melbourne, Victoria, 2009: Arthur Freeman threw his four-year-old daughter off the Westgate Bridge in peak-hour traffic, with her two young brothers watching.

• Winchelsea, Victoria, September 2005: Robert Farquharson deliberately drove his three children into a dam on Father’s Day.

The past year of lockdowns due to the COVID-19 pandemic, and the loss of jobs and the closure of schools that accompanied them, have contributed to a major rise in domestic violence around the country. This affects not only women but children, especially if they witness such violence against their mothers. 

How can we explain why a father would murder his own children or partner?

It is not good enough to say men are naturally violent. They are not. Often these acts are explained by mental impairment or momentary psychiatric disorders — psychosis or depression. But this avoids dealing with the real issue, choosing to focus instead on the consequences of what they have done.

The reality is that men are socialised into beliefs about what manhood means, including their role in the family. Men often come to view themselves as being ultimately responsible for the family, which in some cases extends to granting himself the right to kill them if he deems it necessary.

Others equate being the head of the family with ownership over the wife and children. Of course, if you believe you own somebody, then you probably also think you can do what you like with them, including destroying them. That’s the history of slavery. More often than not, these actions are seen as payback and the best way to make a former partner suffer for the rest of her life.

These views are very much reinforced by religions, particularly those with fundamentalist views about the place of women in society. Many religious groups whether of Jewish, Islamic or Christian (which includes, among others, Catholics, Protestants, Anglicans, Presbyterians and Pentecostals) origin, portray the family as purportedly a “natural” formation, and essentially private, and reinforce the idea that the man is the authority at the head of the family. 

Why attack family law? 

In mid-February, the government announced its proposal to merge the Family Court and the FCC would go ahead based on the PwC financial report. To achieve this, the federal government is holding the courts hostage, stating it will only commit $16 million over four years plus a few extra judges if the merger goes ahead. 

Opponents of the merger proposal including the Law Council of Australia, who say the move collapses the specialist Family Court into a chronically underfunded generalist court, dismantles its appeal division and risks the safety of domestic violence victims and children. 

The Law Council released an open letter on February 16, signed by 155 persons from the family law area, including 13 retired judges, pleading with the government to drop the merger. They support the idea of a single entry point to family court matters but argue this can be achieved without sacrificing “the benefits otherwise available to children and families from a properly resourced and specialised court system”. 

There is also a proposal from the NSW Bar Association to move all family law work back into the Family Court and leave the remaining business of the FCC to stay where it is.

But there are other problems to be considered. Will there be enough trained personnel to do their job effectively, including hearing appeals? If the PwC report is the basis for such a change, how long will it be before a similar report is drafted to justify further cost cuttings?

The reality of this cost-cutting measure is that it will not lead to a genuine improvement for family law practitioners and the court system. Rather it puts at risk a unique major legal reform - the establishment of an independent specialist Family Court of Australia - that has attracted much international interest. It is a reform we must defend.