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| ISBN-13: | 9781742241319 |
|---|---|
| Publisher: | UNSW Press |
| Publication date: | 06/01/2012 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 224 |
| File size: | 1 MB |
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Born in Hope
The Early Years of the Family Court of Australia
By Shurlee Swain
University of New South Wales Press Ltd
Copyright © 2012 Shurlee SwainAll rights reserved.
ISBN: 978-1-74224-585-0
CHAPTER 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.' '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'. 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'.
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.
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] Barry used to almost invariably give her the house.
Although the Matrimonial Causes Act had been accompanied by funding for marriage guidance services, and required lawyers to inform clients of the services they offered, such referrals were rare, with counsellors claiming that lawyers were 'not interested in marriage counselling [adding that] some oppose[d] it because of their own personal insecurity'.
The campaign for change had a number of strands: lobbying from interested groups, such as the Divorce Law Reform Associa-tion; growing dissatisfaction with the existing 'distasteful' legislation from within the legal profession and among disenchanted separated couples; and a push for marital breakdown to be viewed through a social science lens. The most vocal lobby group was the Divorce Law Reform Association (DLRA), which articulated primarily the views of men who considered themselves unjustly dealt with by the existing law. Melbourne solicitor Judith Peirce had some contact with the association, and recalls that, while the DLRA had a place for women, 'that place was definitely one of using the woman's voice to justify what the men thought was important for themselves'. The DLRA was quick to claim credit for the Labor government's proposed legislation – the result, it declared, 'of 6 years of wearisome agitation by a group of dedicated people ... most of whom are victims of the ill-conceived Matrimonial Causes Act, biased Judges and dishonest practices of some lawyers out to squeeze a quick fortune out of helpless unhappy people'. The DLRA wanted both fault and lawyers removed from the divorce jurisdiction. The legal profession, it argued, had a vested interest in the destruction of family life. Judges were a focus of particular hostility, represented as elderly, out of touch, and imbued with 'UPPER CLASS VALUES'. The 'marital affairs of Australian citizens', the DLRA maintained, should 'be decided by the individual citizens themselves ... Where problems in individual cases persist, then future legislation should make provision for a panel of mediators to assist these unhappy people to determine their affairs in accordance with specific laid down guidelines as to property, mutual support of children, residency of children and parent– child access arrangements'. Underlying such claims, however, lay a strongly misogynistic streak, focused particularly on maintenance, which the DLRA's pamphlets represented as generous welfare payments that rendered 'the female bottom ... an asset that appreciates' in the wake of a divorce. In arguments foreshadowing those of later fathers' groups, the DLRA tied maintenance to access, arguing for joint custody as a solution to both problems. 'Children have a RIGHT to BOTH PARENTS ... The lack of a father image causes so much delinquency, promiscuity and an entry in later life to a life of crime and certainly a loss of social values'. 'Parties to a marriage should have the same rights with relation to children AFTER divorce as they had when married', the DLRA claimed. 'Left alone', or with mediation if necessary, 'most parents will work [this] out for themselves'.
There were elements in the DLRA agenda that brought the association into an uneasy alliance with the emerging feminist movement. Its advocacy of no-fault divorce and opposition to automatic maintenance was read by the liberal feminist Women's Electoral Lobby (WEL) as endorsing women's sexual and economic autonomy. However, in retrospect, Judith Peirce suggests that the reform campaign had its origins in 'a desire to control women, particularly arising out of the late sixties and early seventies'. The sense of living in the midst of momentous change created a situation 'where it was really uncool to say no ... but of course a lot of people, and I think particularly men, subverted all of that movement to their own particular needs'. Rather than being a supporter of women's right to work, the DLRA wanted the woman who chose to divorce her husband to be compelled to support herself and asserted the father's rights to assume custody of the children should their mother prove unable to maintain them.
Although the federal government went to great lengths to appease this vocal pressure group, it was to lawyers that it looked to shape the reform. The second strand of the campaign for change was a distaste for the existing system, a distaste that was echoed sharply in interviews conducted more than thirty years after the change. As a new law graduate, one Melbourne lawyer remembers practice under the old Act as 'sordid' and 'seedy'. Brisbane lawyer Neil Buckley recalled 'an appalling system', an 'awful' environment to which judges seemed to be drafted 'under sufferance'. In Adelaide, according to former Family Court judge John Gunn, none of the judges 'wanted to have anything to do with the Matrimonial Causes Act, none of them ... they didn't like it. Everyone had to take their turn and have a month in it, and they all hated it'. Practising in Brisbane, Peter Sheehy particularly disliked the way in which the whole process was humiliating, with women forced to 'expose their innermost secrets'. As a young articled clerk, he was embarrassed to have to interrogate 'quite mature women ... about their private sexual life and relationships ... It was a bit of an affront'.
The formal court hearing required under the Matrimonial Causes Act was, to Melbourne judge John Fogarty, 'a moral battle between innocence and guilt', even if 'underneath it really came down eventually to money and children'. This resulted, Austin Asche explained, in cross-examination becoming very personal ... because if you were going to have a case where one party's got to be painted black and the other party white, these are parties ... [who have] been living together for ten years ... [and] know ... a lot of nasty things about [each other] ... so the barristers have a ball.
John Fogarty believed few cases were driven by 'fundamental moral or social issues'. 'Mainly it was, well I hate him because he left or I hate her because she left and I'm going to get the best outcome that I can get ... [a] lot of them wanted to be vindicated'. Seated high above the contesting parties, the judge was empowered and expected to condemn immorality. The way in which they exercised this power depended very much on the individual. Victorian judge Sir Esla Barber was, according to Melbourne lawyer Joe Kay, 'a delight to appear before. He was polite and gentle with the clients'. However, he went on:
there were others whose behaviour, whether it was their religious upbringing or their disdain for human conduct that was anything less than what they thought was appropriate, was something that helped impel the movement towards the creation of a family court wherepeople would be treated with a little bit more dignity than they were then in the Supreme Court.
Complex relationship breakdowns, Melbourne lawyer John Fitzgibbon remembered, were reduced to devastating denunciations: 'You are an adulterer, you have broken one of the Ten Commandments, you shall pay the price, you will lose your children, you won't get that property division'.
The investigation needed to establish the basis for such judgments created an atmosphere of high drama in the courtroom, Austin Asche recalled, as 'private eyes' recounted their experiences of 'putting tape recorders under beds and chasing people around and out of bedrooms'. The private investigator, Melbourne lawyer Andrew Spilva explained, provided the easiest route to a quick divorce:
Dad would know and would say well Mum's living with her boss, or Dad's living with his secretary, that sort of stuff. And so the detectives would come in and knock at three o'clock in the morning, and people would be caught in bedclothes and that was the evidence, there's your adultery; you could file your petition ... Some of them actually were so crude they actually broke into bedrooms and took photographs.
Judith Peirce recalled lawyers 'hanging around outside the Supreme Court all gowned up ready to go in'. The photos provided the opportunity for amusing banter: 'you know, "Have you seen my photos? I'll show you mine if you show me yours"'. A young solicitor at the time, current Chief Justice Diana Bryant recalled phrases 'that came up again and again and again' when such evidence was tendered. 'They'd say, "the lights went out in the rest of the house, the lights went out in the bedroom last", this sort of stuff would be in their report, and then often they'd knock on the door and people would come in their pyjamas'. Hobart lawyer Fabian Dixon described the process as 'a sausage machine ... fairly demeaning'.
The detective would say, 'I went along to the flat and I knocked on the door and said Mr X or Mrs X, your car is on fire outside', and of course they'd open the door and then he'd rush in and say here's the camera and here's the man. It was yuck.
Cases brought on the grounds of cruelty were particularly traumatic. Divorce judges took any accusations of cruelty very seriously, particularly, according to John Fogarty, when they were directed at 'fine upstanding' middle-class men. Women alleging that their husbands were violent were required to detail each individual instance, providing medical and physical evidence in support of their claims. 'We had to prove [that cruelty was] consistent', Judith Peirce explained, 'and you had to have your evidence ... [but] very few women go off and remember to get the photos taken. They're in a total state of shock'. One registrar recalled a judge saying to someone who was alleging cruelty: 'Where are the broken bones? You can't have cruelty without broken bones'. In response, the accused husband would often argue that he had been provoked by his wife's conduct, citing instances of nagging, harshness or refusal of sexual intercourse. In order to establish that the alleged cruelty was beyond what would be considered reasonable in a marriage, the whole history of the marriage had to be aired in the open court.
'Judges', Sydney lawyer Stuart Fowler observed, 'had very different attitudes towards human behaviour. There was one judge particularly who thought that adultery was a distasteful thing that men often did, but absolutely shameful for a woman to be involved in'. In his early years of practice, Fowler remembered appearing regularly before a divorce judge who expected a woman to wear hat and gloves, and 'exploded if when she took off her gloves to hold the Bible on which to take the oath ... she was not wearing a wedding ring'. Ian Loughnan recalled another judge who, bedecked in 'monocle and spats ... would be apoplectic at the thought of sex outside marriage, he would go bright red and scream at women, "Did you have sex with the children in the room?"'. Andrew Spilva gave as an example 'one of the judges ... a bitter little man' challenging a woman about her alleged adultery. The woman was 'pregnant to the extent that it was not if she was pregnant, but in how many hours would she deliver'.
(Continues...)
Excerpted from Born in Hope by Shurlee Swain. Copyright © 2012 Shurlee Swain. Excerpted by permission of University of New South Wales Press Ltd.
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Table of Contents
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,