By Lara McKirdy
You might have missed it, but ‘Broken: Children, Parents and Family Courts’ by Catherine Lumby and Camilla Nelson has had a lasting relevance in commentary on the Australian family law system since 2021. Only a measly 250 pages long, this book is well worth a read if you want to stay up-to-date with the current issues plaguing Australia’s highly contentious family law system.
Situated in its political context, family law legislation has undergone significant reform with each passing government since its inception in 1975. ‘Broken’ highlights the lasting issues and archaic culture plaguing this legal system.
Overview of contents
In three deeply impactful parts, this book begins by detailing the warped culture of the family court as influenced by passing conservative governments leaving their mark on an increasingly broken system.
The book progresses in detailing the toxic litigation tactics employed by family barristers on either side to exhaust, financially drain, and traumatise the other party. The issue deepens in custody battles, with the weaponization of misogyny by lawyers and judges alike.
Lastly, children experiencing sexual or violent abuse, and who are without a voice in court proceedings, have no defined methods of having such allegations taken seriously and are often accused of being subjected to parental manipulation, almost always by their mother.
You will notice throughout this review that family court outcomes are disproportionately detrimental to women and their children.
Below I have outlined two very notable ideas from ‘Broken’, which I hope will motivate readers to get across these issues.
The Howard Government Reforms
Many lawyers agree that the current nature of the family law system is deeply set in its political context. The unravelling of the family law system today began with the nascent men’s rights movement in the 1980s, which saw the bombing of a family court and the death of a judge during the course of particularly grisly custody proceedings. Gareth Evans, former Vice-Chancellor of our university, set the stage for a long line of family law hijacking when, succeeding the court bombing, he offered an olive branch to the members of the men’s rights movement to take part in policymaking.
This olive branch led to a slew of inquiries that culminated in the Family Law Reform Act 1995 (Cth). The Act introduced dysfunctional provisions that stated that, unless it was contrary to their best interests, a child had the ‘right’ to be cared for by both of their parents. This reform was called the principle of ‘shared parental responsibility’, which set out that no matter how conflicted or acrimonious their relationship, parents must agree on everything related to the future needs of their children.
However, this reform failed to take into account the significant disputes over minor issues that spiteful or unhappy parents would engage. These disputes would not only make each other’s lives miserable, but also make their children's lives a living hell. This reform was also insensitive toward mothers and children who had experienced domestic or sexual violence from their ex-partners who, for the sake of their own safety, would most benefit from having zero contact, rather than forced and mandated contact.
This is a sample of the reforms imposed by the Howard government. The remnants of these reforms, including its fundamental legal principles and corresponding issues, are still rampant in the family law system today.
The Culture of the Court
Many family lawyers employ a plethora of nasty litigation tactics called ‘litigation abuse’ that any reasonable person would believe are completely unethical and out of line with professional practice standards. The longevity and seeming lack of concern for these tactics has ruined countless lives and traumatised countless victims of this vicious court.
Most family lawyers are intimately familiar with the ‘burning off’ legal strategy, whereby one party takes advantage of their larger bank balance to cause harm, distress, and financial loss to the other party through extended litigation. I am sure this is a tactic employed in various other courts of law, but considering such strategies are employed by one party against another where children are inextricably linked with the process is unconscionable, highly malicious, and unforgivably cruel.
Cases featuring high levels of coercive and controlling abuse often run until the family's assets are exhausted, although the only cases that will be visible to judges are the ones that end up at trial. The saddest part concerning this legal strategy is how ubiquitous it is in family law, and how family lawyers are not held accountable for the ruin of not only their client’s lives but the lives of their client’s family members as well.
Once again, this issue disproportionately affects women and children who are victims of domestic or sexual violence who, throughout the mediation or litigation process, are subject to their abuser having a tight grip on the family assets, refusing to disclose financial information, or even obfuscating financial matters. Litigation abuse is used as a means to destroy the other party emotionally and financially as a warped alternative to working toward a beneficial arrangement for both parties in a non-coercive course of litigation.
The issue of ‘litigation abuse’ is only one part of the puzzle constituting the significant issues that define family court proceedings.
Summary
There is a silver lining to ‘Broken’. A number of reforms are provided to solve these complex problems, particularly around improving the voice of children in proceedings to support better outcomes for women and children who are subject to domestic or sexual violence. The book is a strong voice of hope that policymakers will see the damage done to the countless people that have been chewed up and spat out by the family law system as it currently stands.
‘Broken’ serves as a call to action for a government that has remained dormant on family law issues for over a year and to make a start toward repairing the issues of this legal system. ‘Broken’ also provides an important voice for the stories of the women and children you never hear about, but should.