Born in Hope: The Early Years of the Family Court in Australia

By Shurlee Swain

The Family Law Act of 1975 and the establishment of the Family Court of Australia in the following year aimed to revolutionize the settlement of marital disputes. But the court quickly became the focus of hostility, and many saw it as a failed experiment. Drawing on interviews with judges, lawyers, and counselors, this book challenges that notion and captures the complexity of the early years as the Family Court grappled with increasing media criticism and acts of violence never before seen in the Australian legal system. This intriguing oral history provides a deeper understanding of the legal institution that arguably impacts a larger proportion of Australians than any other.

• Language: English
• Publisher: Independent Publishers Group
• Release date: Jun 1, 2012
• ISBN: 9781742241319

Shurlee Swain

Shurlee Swain is a Professor at Australian Catholic University and a Senior Research Fellow in the School of Historical Studies at the University of Melbourne

Book preview

BORN IN

HOPE

SHURLEE SWAIN, professor at the Australian Catholic University in Melbourne, has published widely in the area of Australian social history, with a particular focus on the history of women and children. She is co-editor (with Andrew Brown-May) of The Encyclopedia of Melbourne and co-author (with Margot Hillel) of Child, Nation, Race and Empire, co-author (with Julie Evans, Patricia Grimshaw and David Philips) of Equal Subjects, Unequal Rights: Indigenous Peoples in British Settler Colonies, 1830–1910 and co-author (with Dorothy Scott) of Confronting Cruelty.

BORN IN

HOPE

The Early Years of the Family Court of Australia

SHURLEE SWAIN

A UNSW Press book

Published by

NewSouth Publishing

University of New South Wales Press Ltd

University of New South Wales

Sydney NSW 2052

AUSTRALIA

newsouthpublishing.com

© Shurlee Swain 2012

First published 2012

10 9 8 7 6 5 4 3 2 1

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Inquiries should be addressed to the publisher.

National Library of Australia Cataloguing-in-Publication entry

Author: Swain, Shurlee.

Title: Born in hope: the early years of the Family Court of Australia/by Shurlee Swain.

ISBN: 978 174223 292 8 (pbk.)

978 174224 131 9 (ePub)

978 174224 585 0 (ePDF)

978 174224 369 6 (Kindle)

Subjects: Australia Family Law Act 1975

Australia. Family Court – History.

Family law – Australia – History.

Family courts – Australia – History.

Dewey Number: 346.94015

Design Josephine Pajor-Markus

Cover image Shutterstock

Printer Griffin Press

This book is printed on paper using fibre supplied from plantation or sustainably managed forests.

Contents

Foreword by The Honourable Diana Bryant AO 

Preface 

Acknowledgments

Interviewees

Abbreviations

1  If you want to be free, be free 

2  A ‘helping court’

3  Potted palms and white laminex tables

4  We were starry-eyed

5  Violence intrudes

6  Under siege

7  The end of innocence

8  Everything old is new again

Notes

Bibliography

Index

Foreword

The history of the Family Court of Australia has somewhat mirrored the lives of those who came before it. The Court’s establishment was well intentioned, hopeful that fractured relationships could be handled without rancour and bitterness, and that parties would be able to settle their differences with counsellors and, if not, that short proceedings focussing on the future, not the past, would enable parties to leave the Court with dignity intact. But like the relationships of the parties themselves, initial hopes were not realised; human nature was not so easily changed – even without fault-based grounds, grievances and blame ensued. Why this was so much more cataclysmic in the Family Court is a matter for conjecture. Perhaps too much was promised and expected. Perhaps the social change was too great.

This history of the Family Court provides an insight into the first decade from those involved and is an important aid to understanding that part of the history, not only of the Court but of our society. There have been other histories written in articles over the 35-year history of the Court, but none from the independent standpoint of this history. It is based on oral accounts of those involved, but written from the perspective of an independent observer. It is an important addition to our understanding of family law, the breakdown of intimate relationships and Australian society.

The Honourable Diana Bryant AO

Chief Justice, Family Court of Australia

Preface

Mr Murphy got the concept right, of no fault. The nuts and bolts, we’re still mucking around with … And like everything else in this world, you never get a final model.

Australia’s Family Court, as solicitor Andrew Spilva observes, has been subject to frequent change. Born in hope, it has never been far from controversy. Ushered in by the passage of the Family Law Act in 1975, the last year of the reformist Whitlam Labor government, it was intended to reduce the costs and enhance the dignity of the divorce process.¹ Gone would be the notion of divorce as ‘spectator sport’, the salacious press reports of unfaithful spouses and the industry of private investigators who had been ready to ‘stalk’ suspicious spouses for a fee.² In their place would be a non-punitive approach that would encourage new social understandings of marriage breakdown. Divorce was no longer to be seen as moral failure but rather as simply a step in the transition from a relationship that had already ended. Through its counselling arm the new ‘helping court’ was to address each separating couple’s ‘human problems’ as well as their legal rights, allowing them to end their marriage without having to parade faults in public.³

The queues which greeted the court when it opened at the beginning of 1976, and the ease with which most proceeded through the new procedures, were evidence that the idea that partners who have ‘drifted apart’ should be free to end their marriage enjoyed widespread support. However, media comment quickly shifted. The ‘helping court’ became a ‘Star Chamber’ in which aggrieved husbands and loyal wives were denied the right to seek justice. Arguably, the Family Court impacts on a larger proportion of the Australian population than any other jurisdiction, yet for most the contact is fleeting. However, every contact takes place against the backdrop of this wider controversy. Although comparatively few separating couples engage in litigation, the court’s personnel, particularly its judges, have become the focus of hostility among family law clients. Repeatedly analysed, demonised and critiqued by the press, angry litigants, academics and parliamentary inquiries, the court has been the target of threats and physical attacks. Subject to its first review barely three years after it commenced, the Family Law Act has been repeatedly amended, yet the bitter divisions remain. Conservative commentators and some Christian groups continue to argue that the reformers of the 1970s were profoundly misguided in abandoning fault.⁴ Positioning the reform as a feminist conspiracy, various men’s groups have taken every opportunity to show that no-fault divorce has favoured women, while women’s groups argue that it fails to give due attention to the impact of domestic violence.⁵

The controversial court has also attracted the attention of historians, most of whom have been somewhat kinder than its critics. To Henry Finlay, the Family Law Act served as an end point for the long history of divorce law reform in Australia, with the court promising a bright new beginning.⁶ Leonie Star, writing in 1996, was somewhat less sanguine, documenting the campaign for reform, the introduction and operation of the court and the hostility that it attracted.⁷ Significant anniversaries have given some of the judges the opportunity to reflect on the court’s early years. Traditional legal analyses have focused almost exclusively on changes to the Act and the case law developments made by the Family Court, and there is also a burgeoning socio-legal literature on the family law system, which has concentrated on the impact of law reforms on the users or clients of the system.

This book, however, takes a different approach, choosing to focus instead on the court as it was experienced by those who worked within it during the foundation years. In the chapters that follow, its first judges and counsellors and some of the family lawyers who practised in the jurisdiction look back over the struggles and achievements of the first ten years.⁸ Challenging populist understandings of the reform as an experiment that failed, the book seeks to capture the complexity and humanity of the times when these founding actors sought to put the Whitlam government’s policy into effect. Memory is never fixed. Rather, it is constructed in the context of the collective remembering at the time at which it is recalled. Hence, by bringing together a series of individual stories of a shared experience, we gain a deeper and more complex understanding of that experience, the meanings that individuals attribute to shared events and relationships, and the motivations, desires and aspirations they encode. The recollections accessed here suggest both a diversity and a commonality of experience. Despite the sense of belonging to a special club at a special time, the court’s first employees were operating in their own local environments. With little precedent on which to draw, they developed distinctive local cultures, building the court from within. Yet they all shared, directly or indirectly, in an experience of trauma as the optimism surrounding the court’s foundation was eroded by media criticism and finally shattered by acts of violence never before seen in the Australian legal system. In the interview transcripts, nostalgic reflections about the challenge and excitement of being involved in a new venture are interrupted by more troubling memories of bomb threats in the workplace and personal intimidation which at times extended to family and friends. Archival and media reports place these recollections into a wider context, allowing us to develop a more rounded picture of the court’s first decade.

The Family Law Act was a response to contemporary realities, removing a form of divorce that had become increasingly out of step with changing moral attitudes. Yet its underpinning message of gender equality also helped to shape expectations and provoke new equality-based demands for post-divorce rights that continue to influence family law politics to this day. The chapters that follow explore the dimensions of this change while also acknowledging its unintended consequences. The book begins in the 1970s, capturing the pressures for social change and the distaste with existing divorce procedures. It then turns to the early years of the court’s operation, years marked by enthusiasm and experimentation. Such optimism, however, was always laced through with doubt, generated by the low regard in which the Family Court and its personnel were held by some other members of the legal profession, and by threats and criticism from some of its clients. When the threats degenerated into violence, all too often the court was seen as complicit in its own plight. Only when the wife of a judge was killed did a concern for security replace blame, yet for many of our informants the questions remain. Were we too naive? Did the concept of no fault disguise very real evidence of violence against women? Was it too idealistic to imagine that all marriages could end without a need to ascribe fault?

Acknowledgments

This book is one of the outcomes of the Australian Research Council funded project The Helping Court: Examining the Early History of the Family Court of Australia conducted under the auspices of the Melbourne Law School and the School of Arts and Sciences (Vic), Australian Catholic University. The research project has produced several articles, authored by my colleague Helen Rhoades and other members of the research team and published in various academic journals. However, the interview data was so rich, and our interviewees were so generous, that it would have been an opportunity lost not to give a space for their stories to be told.

As the historian on the research team, the task of composing a book from this rich collection of interviews fell to me, but the task would have been impossible without the legal skills and wisdom of Helen Rhoades, who refined my understanding of family law, moderated my flights of fancy and, through her constant enthusiasm, encouraged me to keep going when energy flagged. I am also deeply indebted to the team of research assistants with whom we worked during the course of the project: Margaret Harrison, Danielle Thornton, Naomi Pfitzner, Charlotte Frew, Allie Bailey and Nareeda Lewers. In various combinations and at different times they undertook many of the interviews, did most of the intensive archival and newspaper research, and offered very professional analyses of the data they had collected. Their competence was amazing, and there would have been no book without them.

Although the Family Court did not directly sponsor our research, the project would have been impossible without their co-operation, providing details of possible interviewees, and, occasionally, a space in which they could be interviewed. Particular thanks are due to the current Chief Justice, Diana Bryant, who not only expressed her support for the project but also made time to be interviewed, and to Richard Foster, who played a critical role in persuading UNSW Press that such a book was worthy of publication.

The richness of this book lies in the interviews on which it draws, so it is fitting to acknowledge all of those who found time both to be interviewed and to edit the resulting transcripts, often enriching them considerably in the process. Many of the interviewees also shared photographs and other memorabilia, all of which contributed to a fuller understanding of the early years of the court. Offered the choice as to whether to be identified, some chose to remain anonymous. Where their words are incorporated in the text, they are identified only by category and location. Most of our interviewees were willing, indeed eager, to be named, so quotations from their transcripts are ascribed to them. A full list of those interviewed for the project is included below.

Finally, I would like to thank the many friends, family and colleagues who continue to support my scholarly activities. Writing, in the end, is always a solitary experience, but it is made more bearable by the companionship of others. Special thanks are due to Phillip, who has morphed into an amazingly competent house husband; to Sylvia Herlihy, who calmly and efficiently manages all the administrative and financial details that accompany a large grant; and to my young colleagues at Australian Catholic University, Ellen Warne, Nell Musgrove and Noah Riseman, who not only have picked up the teaching that I used to do, but are also developing into impressive researchers.

Interviewees

Abbreviations

1

If you want to be free, be free

It was happening at a time of significant social change.

I mean the early 1970s were really the next stage on from what was occurring in the late 1960s.

Retired judge Josephine Maxwell’s simple explanation of the origins of the Family Court of Australia points to a more complex reality. The baby boomers, as they came of age in the 1960s, had cast aside the conservatism of their parents, engaging in a series of liberation campaigns that challenged many of the old verities. A university student during the 1960s, Brisbane lawyer Peter Sheehy remembers it as a time of ‘big change, huge change, things were happening’. In Australia this shift was marked politically by the election in 1972, for the first time in over twenty years, of a Labor government to whom the responsibility fell to bring law and government practices into line with the new social mores.

In many ways the Family Law Act 1975 was revolutionary. Unlike the Matrimonial Causes Act 1959, it was consumer-driven, shaped in part through the lobbying of a range of interested parties (see figure 1). It was the first legislation to introduce social science and a semi-inquisitorial process into family law, along with the concept of ‘no-fault’ divorce. But divorce law reform was just one element in this broad process of change. The availability of reliable contraception, in combination with rising educational opportunities for women, was in the process of dramatically altering gender relations. Contemporary commentators saw themselves as being in the midst of momentous change. ‘The extended family crumbled under the weight of the Industrial Revolution’, one journalist observed. ‘The nuclear family in turn is now under threat from social pressures ranging from the advent of the Pill to the emancipation of women in the workforce and other farreaching technological changes that have increased leisure time and education standards.’¹ ‘The Women’s Liberation Movement, which a few years ago would have been regarded as of the lunatic fringe’, wrote legal academic Henry Finlay, ‘has become a fact of life. De facto unions and unmarried motherhood do not attract anything like the same social stigma that they did in 1959’.² Social security and government housing programs, designed to offer some support to such non-traditional families, functioned further to destabilise the patriarchal model, creating a space in which women could escape from unsatisfactory or violent marriages. As Family Court registrar Ian Loughnan recalled: ‘they were the things that made a revolutionary difference. There was somewhere for a woman in terrible circumstances to go and a way of being provided with support … There really was change afoot’.

No-fault petitions being signed at Civic Plaza, Canberra, 1974

National Archives of Australia A6180, 13/11/74/11

Coincident with such changes was a reconsideration of the nature, function and meaning of marriage. Relationships, previously understood to be within the realm of religion, increasingly came to be seen through the lens of social science. Although he was in opposition at the time, later Prime Minister Malcolm Fraser recognised the need for change: ‘the law was very rigid and very narrow. The whole idea of attributing blame and fault … was probably misconceived because these things are almost certainly never just one person’s fault’. More radical voices argued that marriage should be understood essentially as a contract, with mutual expectations clearly articulated at the outset:

As equal partners to a contract women could not argue that they are enslaved or exploited … This concept of marriage would also benefit greatly those men who, while understanding and sympathizing with the dissatisfaction of women, find themselves cast … in the role of husband ogre … It would also prevent the all too common phenomenon that a young couple marries, determined that they are going to be equal in everything, but then by sheer social gravity they revert to the traditional sexually differentiated roles. If the conditions are spelt out then both will know when they start backsliding.³

Such pressures for change had brought about a gradual evolution in divorce law practice. With the introduction of the Family Law Bill in December 1973, the impetus for change moved to the parliament, where the opportunity arose for a wider range of voices to be heard. Although the central legal change, the abolition of fault-based divorce, was an issue being debated in many Western countries at the time, in Australia the simultaneous agitation for a specialist family court marked a unique innovation. This allowed a break with the traditional adversarial model of justice, and the development of a ‘helping court’ tailored specifically for meeting the needs of persons experiencing family breakdown, including revolutionary new ideas about the role of counselling and social science in meeting those needs.

Prior to 1975, divorce in Australia was governed by the Matrimonial Causes Act 1959, passed by the federal parliament but administered through the state Supreme Courts. The Act incorporated several no-fault grounds for divorce, including insanity and five years separation, which sat alongside fourteen fault-based grounds, such as adultery and habitual cruelty, both of which allowed for immediate divorce, and desertion, which allowed for divorce in most states after two years. By the 1970s most applications were consensual and collusion was rife. Court proceedings, however, were highly adversarial, with divorce judges exercising their role as guardians of community morality. Their judgments were framed in terms of guilt and innocence, winners and losers. ‘Whoever won the divorce’, lawyer John Berry recalled, ‘usually won everything else, including property, kids and anything else’. Family Court judge Austin Asche explained:

It was very important if you were a man of some wealth, to prove your wife guilty of adultery [as it] meant that she couldn’t make any claim against your estate. And similarly, if you were the woman and you wanted to prove your husband guilty of desertion or cruelty, it assisted greatly … in fact Justice [John]