Prime Minister Scott Morrison has announced yet another inquiry into the family law system, with Liberal MP Kevin Andrews and One Nation Senator Pauline Hanson as leader and deputy chair, respectively. Neither are known for supporting the Family Court nor their expertise in family violence issues.
The family law inquiry was ratified in the Senate on September 18 and will focus on “systemic failures” in the Family Court of Australia, such as the backlog of cases, time delays, costs, onus of proof for domestic violence orders (DVOs) and claims of false evidence used against former partners.
The proposal faced substantial opposition in the Senate and Hanson’s appointment has outraged many, particularly those who work in women’s legal and family violence advocacy organisations.
Hanson, who requested a spot on the inquiry, bases her opposition to existing family law on complaints by her son of bias against men in the family court system.
In 2016, Hanson’s son pleaded guilty to breaching a DVO. But earlier this year, Hanson argued in the Senate that her former daughter-in-law had lied about her son and that this practice was typically used by women to victimise former partners and deny or limit their access to children.
Hanson has also claimed that it was the Family Court’s fault that, each week, three men are suiciding and one woman is murdered by a current or former partner. She presented no evidence to back these claims — though Hanson is not known for objectivity or the use of facts.
Hanson’s claims have been rejected by the first chief justice of the Family Court, Elizabeth Evatt, who told the Sydney Morning Herald on September 18 that it is “quite appalling to start an inquiry with ready-made opinions”. Such claims, she added, need evidential substantiation and could not be “based on one or two instances you might know of”.
According to the Australian Institute of Family Studies, fathers who go before the Family Court retain visiting or parenting rights in 97% of cases.
There have been numerous investigations into the problems facing the family law system. This is the third such inquiry in as many years and in March, an Australian Law Commission (ALC) Review presented 60 recommendations to the government, though they have not yet been publicly released.
In general, the evidence shows that problems in the family court system are largely due to a lack of funding and resources.
Discrimination against women
The legal situation of women was established shortly after federation with the recognition of citizenship for non-indigenous people. However, women’s economic and social equality was not.
In 1907, Australia’s minimum wage was set at the minimum that a male worker needed to support a wife and three children. Five years later women’s wages were set as 54% of men’s wages. This reinforced women’s role and dependency within the family as provider of domestic support for her husband.
From World War II and into the early 1970s, women’s wage situation improved to 75% of the male wage.
In 1966, the bar requiring married women in the federal public service to only work in temporary positions was lifted. The bar had ensured career progress was impossible as promotion depended on permanency.
When Gough Whitlam’s Labor government was elected in 1972, it undertook to implement major improvements to the situation facing women.
In 1974, the minimum wage for women rose to 100% of the male rate, though industries remained extremely sex segregated.
There was a great deal of opposition to Whitlam’s Family Law Bill — which was passed in 1974 and led to the establishment of the Family Court a year later — especially from the Roman Catholic and Protestant churches, which saw the family as a private institution with a man as its head.
The Family Court was established as a second federal system, alongside the Federal Court of Australia. It set out the new legal framework for the dissolution of marriage: a no-fault divorce based on the only ground that the marriage had broken down. This was in stark contrast to the previous punitive male-dominated divorce framework of fault.
Where there were no disputes on issues when it came to parenting, such as financial support, property distribution or arrangement for children, the court played no active role.
But, where such complex issues were contested, the Family Court prioritised the best outcome for children. In particular, it took into consideration situations of serious physical violence and sexual mistreatment of children or general family violence against mothers.
The family court system also included internal counselling and mediation services. Evatt saw these as necessary to resolving issues without resorting to litigation, but says today, such services have been reduced or privatised.
Evatt resigned from her role as chief justice in 1988, due in part to a string of bombings and shootings targeting judges and other people associated with the Family Court.
Following the election of a Coalition government in 1996, then-PM John Howard argued women had achieved equality and that it was now men and boys who were disadvantaged by the Family Court.
Under Howard the Federal Circuit Court came into operation in 2000. It extended the federal court structure from two courts to three to deal with the expanding backlog of cases in these two jurisdictions. Through its unique regional circuit routine, it was meant to provide more accessibility to justice.
In 2006, Howard reformed the Family Court to give both parents the presumption of shared care of children after separation. How this was to be understood and put into practice was complicated and disputed, however.
The Federal Circuit Court has since greatly expanded its reach into family law and child support, taking up less controversial family cases.
However, its brief is to operate informally and use streamlined procedures. Given the complexity of cases involving contested negotiations over children, this often leads to delays as jurisdictional shifts are necessary between the Federal Circuit and Family Court systems.
In August last year, the Malcolm Turnbull Coalition government announced it was planning to combine the Family Court with the Federal Circuit Court and make the Federal Circuit Court judge the single chief justice, to facilitate the resolution of about 8000 extra cases.
The idea was that, over time, one of these two jurisdictions would be phased out.
The proposal was opposed by former Family Court chief justice Alastair Nicholson, who said it was part of an insidious campaign to get rid of the specialist family law division and that the move would lead to a rise in the risk of violence towards women.
This issue moved into the background during the Liberal Party’s leadership spill and Turnbull’s subsequent resignation from parliament.
However, new Coalition leader Scott Morrison again raised the court merger proposition earlier this year.
Morrison failed to gain support for his proposal from the Law Council of Australia, which argued families are better off with a specialised Family Court. Law Council president Arthur Moses said on April 4: “Merging one court with another does not address significant underlying issues, including chronic underfunding and under-resourcing, which have led to crippling delays, pressures and costs”.
Attorney General Christian Porter also failed to win crossbench support to put the bill to merge the two courts to a vote on the final sitting day of the Senate prior to the May federal election.
The new inquiry is presumably an attempt to get the merger proposition up, given who has been appointed as convenors and the government’s failure to release the recommendation of the ALC review.