The Family Court went without a debate, and without understanding the damage it would cause to the most vulnerable. We should not forget who was responsible.
So, it has finally happened. The nice white males of the Coalition have managed to abolish the Family Court. While in the House, Scott Morrison was apologising to a Liberal staffer for the way she was treated after her alleged rape, in the Senate our representatives got a minimal amount of time (and weren’t allowed a debate) to decide if they wanted to do away with a court that specialises in family law.
The Bill was listed without warning and was not on the draft legislation program. Also, the Attorney-General’s own Department had said in December that there hadn’t been a “specific study of what impact” the abolition would have “with respect to family and domestic violence issues.”
Nobody was consulted and an open letter from 155 former judges and community organisations was ignored. A deal was done with Pauline Hanson and leading light in the fathers’ rights movement Rex Patrick. And that was that. Jacquie Lambie had a few choice words to say about it, talking about “a train wreck in action” and said that her colleagues in favour of the Bill were “playing with people’s lives.”
Former Chief Justice Elizabeth Evatt, the first Chief Justice of the Family Court in 1975 (and yes, Doc Evatt’s niece) was less in-your-face but just as clear. She said that the bill was “not in the public interest and should not be enacted.”
So, what is going on? And why does it matter?
The Family Court was established by the Whitlam government in 1975, just before the dismissal. Malcolm Fraser took it over, in spite of the fact that many people in Coalition ranks even then were not happy with the fact it broadened the rights of women and children. Although there were always adversaries of the Family Court, in the beginning, serious attempts were made to make family law issues less horrendous for the families involved, especially the children. Judges didn’t wear wigs, for instance, and the language used was easier to understand.
As author Jess Hill, writer of the seminal Look what you made me do wrote in The Guardian last year, until the mid-1990s, the priority of the Family Court was children’s safety. Then fathers’ groups started their lobbying campaigns, arguing that they were discriminated against and that mothers had more say in the legal system than they did. In 1995, this led to a reformed Family Law Act, that stated that children had a right to ongoing contact with both parents. Under pressure from the fathers’ groups, this children’s right became a father’s right, and in 2001 a study by the Family Court and the University of Sydney found that the system now “tilted more and more against women, either by accident or design.”
Even if abuse was proven, even if fathers had been convicted of abuse, contact was not denied. In 2006, this practice got even more momentum when the Howard government amended the Act once again, making it even easier for fathers to be granted both access and custody. In fact, what was called “shared parental responsibility” became the new rule. And, scarily, the parent alleging abuse was now considered ‘hostile’. The consequences were often that mothers lost their children and that children were given to their fathers. Despite allegations of family violence in more than half the cases, only 3% of fathers were denied access, Hill calculated. Mothers were now the problem, not the abusive fathers. Of course, children paid the price for this more than anybody else.
Nobody was consulted and an open letter from 155 former judges and community organisations was ignored. A deal was done with Pauline Hanson and leading light in the fathers’ rights movement Rex Patrick. And that was that.
In 2012, then Attorney-General Robert McClelland (now the Deputy Chief Justice of the Family Court) removed the shared parental responsibility rule, but in practice, it was difficult to turn the ship around. So, in 2017, a House of Representatives Inquiry, after 179 consultations and 1,200 written submissions, recommended that the rule could no longer be put into practice because it was “leading to unjust outcomes and compromised the safety of children.”
The Inquiry also recommended extra resources and reform of the Family Court, that was by this time struggling to stay afloat. Too few judges had too many complicated and often horrendous cases to deal with. As a consequence, the waiting times were way too long, judges were overworked, and mistakes were made. Then Covid came along and with it another “huge jump in urgent cases”, as Chief Justice William Alstergren said a few months ago. Everybody agreed that something needed to change, including the Australian Law Reform Commission, that recently recommended: “sweeping changes that would put children’s safety – instead of parents’ rights – back at the centre of the Family Court.”
The ALRC advocated for increased specialisation in both family law and family violence. Because despite all its problems, the Family Court had that as a very important benefit: its judges, social workers, even its administrative staff knew about family law issues. They dealt with it all day every day and were able, as Elizabeth Evatt said, “to give their full attention to the needs of family law clients.”
That will not be the case in future. Now the Family Court is abolished, all cases will be handled by the Federal Circuit Court. They are not specialised and they too are completely under-resourced and overworked. The FCC told the powers-that-be a year ago that their core business is now immigration cases, and that they have grown so substantially that they are overwhelmed already. That, of course, doesn’t bode well for family law situations, that are often urgent and need attention as soon as possible.
The ALRC advocated for increased specialisation in both family law and family violence. Because despite all its problems, the Family Court had that as a very important benefit: its judges, social workers, even its administrative staff knew about family law issues.
Between 1980 and 1985, the Family Court was at the centre of a campaign of violence. A man called Leonard Warwick was so angry at the way judge David Opas handled his case, that he shot him dead at the front lawn of his house. The next judge, Richard Gee, was injured when a bomb destroyed his home. Then the Family Court building in Parramatta was bombed and the home of justice Ray Watson. His wife Pearl, who opened the door that had Warwick’s explosive fixed to it, was blown up. In 1985, a bombing of the Jehovah’s Witness Hall caused the death of Minister Graham Wykes. Warwick was only arrested in 2015 and sentenced to life in prison last September. The judge called his actions “calculated, violent and hateful…an attack on the very foundations of Australian democracy.”
Warwick was angry at his ex-wife and felt that the system discriminated against men. Attorney-General Christian Porter behaves as if he agrees with him. Although the Family Court is far from an ideal institution, its abolition is “exposing survivors of family violence to unnecessary risk”, as the CEO of Community Legal Centres Australia, Nassim Arrage, said.
It is also a victory for angry white males. If blowing it up in practice doesn’t work, why not do it through Parliament? So much cleaner, isn’t it?
For this story I have used the following sources: