Australia’s ‘Family Court’ System Draws Criticism

Until 1975, obtaining a divorce in Australia was often a humiliating experience that frequently involved private detectives, concocted infidelities and protracted legal battles contrived to blame one of the partners for the breakup.

Then the ruling Labor Party enacted legislation aimed at liberalizing procedures. In particular, so-called “family courts” were established with the authority to grant no-fault divorces.

But the progressive new system has created as many problems as it has tried to solve. Within recent years, in fact, it has become the target of widespread criticism and even violent attacks.

One judge has been assassinated and the wife of another killed in a bombing, both by people upset over court verdicts. A few weeks ago, after a ruling limited access to his three children, a man murdered his estranged wife and the children.

Smooth and Painless

Nobody ever imagined that the family courts would lead to such excesses. From the outset, their objective was to make divorce smooth and painless. To a large degree, they have succeeded.

The basic concept of the courts is that any couple whose marriage cannot be saved is entitled to a divorce. Either the husband or the wife can petition for divorce by swearing that they have been separated for a year; if there are no disputes, the marriage may even be dissolved by mail.

Of the 40,000 divorces that take place in Australia every year, only one-quarter involve custody, property or maintenance issues. These are usually ironed out by mutual agreement, so that only 10% of cases actually come before the courts.

If they get that far, though, there are real problems.

Calendar Clogged

For one thing, the judicial calendar is badly clogged, and discordant couples may go on squabbling for long periods before their complaints are heard. The informal atmosphere of the courts has also lost them respect.

One of the system’s biggest flaws is its inability to compel divorced husbands to provide maintenance for their families. As a result, thousands of women and children are living in poverty and cost Australia’s taxpayers $1 billion a year in special government welfare benefits.

Meanwhile, male groups have emerged to protest court decisions that mostly award the custody of children to mothers. One of these groups, the Lone Fathers’ Assn., is headed by Barry Williams, who contends that divorce rulings have become “assembly line justice.”

Williams argues that family courts lack the time and the competence to handle cases with sufficient care. “When you’re talking about someone’s whole life,” he said, “you can’t reach a proper decision in a half-hour.”

Prejudice Charged

Other critics assert that most social workers appointed by Family Courts are divorced women, prejudiced in their outlook. They also point out that many judges lack the psychological training necessary to cope with the job.

No less a figure than Sir Harry Gibbs, the chief justice of the High Court, has questioned the standards of family courts, suggesting that they probably should never have been established. Lionel Bowen, the attorney general, contends that they were set up “in too much of a hurry.”

Proposals have been made to rotate family court judges, presumably to broaden their legal horizons. But the government is reluctant to introduce sweeping changes that, it fears, may undermine the structure. The most it will consider are reforms.

Geoffrey Lehmann, a scholar commissioned by the government to appraise the situation, believes that tensions in split families can be greatly reduced by awarding estranged parents joint custody of the children, as is prevalent in the United States.

He cites a California study that found half as much bitterness among men who can share their children than among those who have been forced to give them up completely to the mother.

“It’s easy to see why men develop tremendous resentment toward the law when they lose the children and the house and still have to pay maintenance to an ex-wife whom they think is responsible for the marriage failure,” he said.