Going Backwards !

For most of the twentieth century Australia had draconian divorce laws.  Divorce was seen as a social sin by many people and was totally unrecognised by some churches.  The law in place at that time made it extremely difficult to obtain and the cause was closely examined in public testimony.  The aim seemed to be to establish who was the guilty party and punish that person in the property settlement.

The two prime reasons for ending a marriage was desertion or adultery by one of the partners. Desertion involved a waiting time of seven years - later reduced to five years - before the degree nisi was granted and adultery opened an era of private investigators peeking through bedroom windows with a camera to gather evidence.   Divorce was a titillating subject for the yellow press and drew audiences to court hearings.

All that changed with the passing of the Family Law Act in 1975.  This ushered in " no fault " divorce and from January 5, 1976 divorce in Australia was handled by the Family Law court .  The court did not decide blame but presided over a fair property settlement and established the best interests of children of that marriage.  It urged divorcing couples to negotiate and in many cases the court merely appended its seal of approval.

Unfortunately some litigants were both bitter and hostile to the court and considered any division of assets unfair. The placement of children was always contentious.   We had an era of bombings and the murder of family court justices and now there are delays in obtaining hearings that the government is trying to resolve.  It is proposed that the Family Court be merged with the Federal Circuit Court and this would result in the phasing out of this new entities specialist family law division.  It would result in new judges who have had no background in family law.

This prospect has raised alarm from Women's Legal Services of Australia who contend that the introduction of judges without specialist backgrounds could usher in bad decisions that endanger vulnerable women and children.  The speciality of the Family Court was to achieve amicable consensus, and in this is was remarkable successful.

Surprisingly, this merger is supposed to expand the hearings by 1500 extra cases a year.   That seems to suggest that the Federal Circuit Court is underutilised and can take up the overload from the Family Court.  Surely it would be better to simply expand the Family Court and train incoming judges with the nuances of dealing with family breakdowns ?

It looks like we are abandoning the conciliatory approach and going back to the harsh interpretation of legal statutes in deciding family law.  Considering the high number of unions that fail and the tendency for marital discord to lead to violence this could have an unsettling effect on social harmony and policing.

We were once wise enough to accept that the irretrievable breakdown of relationships needed a legal way of dissolution with the distribution of assets and the best interests of children.  In most respects the Family Court has achieved that objective.   We will be winding the clock backwards if we reintroduce harsh legality to the ending of marriages !