Broken: Children, parents and family courts
My review of Broken: Children, parents and family courts, by Camilla Nelson and Catharine Lumby was published by Australian Book Review on 1 October 2021 here.
During the early 1980s, in a series of attacks on the Family Court in Sydney, a judge was shot dead outside his home, while bombs killed another judge’s wife and injured a third judge and his children as they slept. The man behind these and other attacks, Leonard Warwick, was involved in a custody dispute with his ex-wife over the care of their young daughter, but it would be thirty-five years before the crimes were solved and he was convicted of three murders and the bombings. Media commentators, meanwhile, wondered what had driven the culprit to such violence. Elizabeth Evatt, the court’s then chief justice, described the media’s response: ‘They said, “The Court has been bombed, what’s wrong with the Court?”’
Camilla Nelson and Catharine Lumby open their story of the ‘helping court’, established by Gough Whitlam and Lionel Murphy with the Family Law Act (1975), with this attention-grabbing tale. They go on to show how the court’s remit of no-fault divorce, and placing children’s wishes and best interests at the heart of custody decisions, had little hope of succeeding under the weight of not just these violent attacks, but of endless politicised reviews, vested interest groups, and a legal profession measuring acrimony in six-minute billable units.
In the aftermath of Warwick’s attacks, the then attorney-general, Gareth Evans, wrote to incipient men’s rights groups inviting them to tell government what changes they wanted to see made to the Family Court. By 1995, the authors write, the Keating government’s Family Law Reform Act introduced ‘seemingly well-intentioned but ultimately dysfunctional provisions which stated that unless it was contrary to their best interests, a child had a “right” to be cared for by both their parents’. In 2006, the Howard government introduced amendments including a ‘friendly parent’ provision: while innocuous-sounding, the provision had a sinister effect of making women loath to raise family violence accusations for fear of being labelled a ‘hostile parent’ and losing custody.
Broken is the latest in a series of books that, in different ways, assess our legal system’s failures. In Eggshell Skull (2018), Bri Lee asked whether the courts could provide justice for sexual assault victims. In Small Wrongs: How we really say sorry in life, love and law (2018), Kate Rossmanith examined the law’s rickety notion of remorse. Helen Garner, in This House of Grief (2014), asked if truth can be found in the theatre of the courts. Jess Hill’s See What You Made Me Do: Power, control and domestic abuse (2019) considered the Family Court’s failure to protect domestic violence victims. In Broken, the authors investigate how children, hurt in broken families, are hurt again in a broken legal system. It’s the most overtly scholarly of this clutch of titles, but Nelson and Lumby, both writers as well as accomplished academics, have crafted a compelling, if often difficult-to-read, narrative. Take, for instance, the story of the father who bashed his partner and tied her to a chair while holding a samurai sword to their infant’s chest. When the father (who was jailed after pleading guilty in a criminal court) denied culpability in the Family Court, the judge praised his ‘worthy attempt to restore his reputation’ and referred the mother to a psychologist to ‘better meet the father’s needs’.
Throughout, the authors unpick the peculiarly circular and patriarchal logic of court decisions. A mother must be caring but not too caring; otherwise her parenting style might be labelled ‘enmeshed’ and a child removed from her care. The more stridently a child rejects contact with a parent, the more likely the other parent will be accused of poisoning the relationship. Verifying claims of sexual abuse requires an ‘exceptionally high’ standard, the authors note, while ‘claims that mothers are “malicious” or “delusional” do not appear to require any evidence’. It’s the ‘vibe’, as an opportunistic family lawyer cousin of The Castle’s Dennis Denuto might argue. Higher-earning and litigious fathers, meanwhile, recruit the courts as accomplices in their abuse: repeated court actions can keep former partners controlled and impoverished (barristers can charge up to $20,000 daily for ‘disappointment fees’ when trials are settled early).
Broken prioritises children’s voices. ‘Harry’, who was in his early teens at the time, tells how a court-appointed expert filled pages of his notebook when interviewing his parents but didn’t lift his pen when he met with him. Without a ‘magical pen’, how will he ‘remember what I’m saying’, Harry wondered. Social workers, court-appointed experts, and independent children’s lawyers can treat children as if they ‘have no inner life, intelligence, agency or feelings of their own’, the authors write. An entire section is given over to Grace Cuzens, whose two younger sisters were victims of their mother’s murder–suicide following years of Family Court litigation. In a letter to the coroner, Grace said her Family Court experience had left her with ‘only trauma and suffering’. She adds that children will ‘lie, withhold the truth’ from court-appointed psychologists and social workers who only see children momentarily. Children can be ‘coached by a parent and … led to believe they will not see a parent again if they tell the truth’. Here, Grace seems to contradict Broken’s authors, who spend much time debunking the popular ‘parental alienation’ theory that said mothers brainwash children to sever their relationships with fathers. But Grace’s testimony seems to be describing a child’s rational response to a system that won’t allow for their truths.
I finished Broken the day the stand-alone Family Court was dissolved and merged with the Federal Circuit Court. On Twitter I read eulogies from those describing the court’s demise as a victory for men’s rights extremists. Broken is a valuable reminder that the Court, born of high ideals, was in some ways already beyond repair.
