COUNSEL OF PERFECTION: THE FAMILY COURT IN AUSTRALIA by Leonie Star. Melbourne: Oxford University Press, 1996. 251 pp. $29.95 Paper. ISBN 0-19-553576-6.

Reviewed by Kenneth Holland, Department of Political Science, The University of Memphis.
E-Mail: "Kenneth Holland" <kholland@msuvx2.memphis.edu>.
 

COUNSEL OF PERFECTION is a history of the Australian Family Court. The work's thesis is that the expectations of the court's founders have been disappointed. The author is not clear, however, whether the fault lay in the unrealistic assumptions of the institution's architects or with those who implemented their design. The account is of particular interest to students of the judicial process in Western-style liberal democracies. We see clearly in the Australian example the incompatibility of the fault-based adversarial system of trial with the no-fault model associated with the alternative dispute resolution movement.

The Family Court's main business is the granting of divorces. In the United States and Canada dissolution of marriage is a state and provincial function. The Australian Constitution, by contrast, places responsibility for marriage and divorce in the federal, or Commonwealth, government. The book opens with an extended summary of the history of divorce law in England and Australia. The purpose of this historical introduction is to emphasize the importance of fault in the law of divorce. Because for centuries the only ground for divorce was adultery, some tribunal was needed to examine the petitioner's claims and to determine the guilt or innocence of the respondent. During the early period of reform, the principal effort was simply to add to the grounds of divorce, including desertion, cruelty, drunkenness and mental illness. During most of the century, the Commonwealth did not actually exercise its constitutional power over marriage and divorce. It delegated that power to the states, whose courts in equity heard and determined petitions for divorce.

In the 1960s, the fault model used for granting divorces came under increasing criticism. Collusion was widespread between spouses who mutually wished to terminate their marriage. The spouses would hire private detectives and stage adulterous encounters for their cameras. In truly contested divorces, private detectives were used frequently to gather the necessary incriminating evidence. Even when the grounds were desertion or cruelty, the petitioner was forced to present evidence in open court attesting to the blameworthy conduct of the other party. The result was often bitter feelings between the spouses, feelings that complicated property settlements and agreements on child custody and support. The hearings were public, and the media, especially the tabloid press, took a special interest in reporting the lurid details of divorcing couples' sins.

Reformers developed a completely different concept of marriage and divorce. Marriage, they argued, was a mutual and voluntary arrangement whose purpose was the happiness of the married couple. If one of the spouses became unhappy and expressed a desire to terminate the partnership, the marriage ipso facto was over. There was no need to blame anyone for bad conduct. Most marriages, however, presented additional issues that had to be resolved in conjunction with the divorce, including division of property, child custody, visitation and child support. Reformers believed that all these issues could be resolved by negotiation between the parties or by mediation supervised by a special court. Divorces could be obtained, they believed, cheaply and with dignity. The most radical reformers contended that if the no fault model were implemented thoroughly there would be no need for judicial involvement. Granting a divorce would be a simple administrative function. Judges would not be needed to make or enforce child support or alimony orders because the government would support the ex-wife and children through the welfare state.

Australian Prime Minister Gough Whitlam, leader of the Labour Party, was persuaded by the advantages of the no fault model and asked Parliament, in a free vote where individual members did not have to vote along party lines, to replace the existing fault-based law. In 1975 Parliament enacted the Family Law Act. According to the act, divorce may be granted upon the petition of one party who states that the marriage has broken down, that the couple has irreconcilable differences and that they have been living separately for at least six months. The Commonwealth exercised its full constitutional powers over marriage and divorce in a special court established by the act.

The Family Court was intended to be a non-adversarial, "helping" court. The court employed counselors whose duty was to help troubled couples remain together or, if reconciliation failed, to assist them in reaching a mutually satisfactory resolution of all ancillary disputes. The judge's role was a limited one. He or she simply ratified whatever agreement the parties reached on their own or with the help of a counselor.

By the 1980s, however, several problems with the no-fault model and the helping court concept were evident. The first was the failure of the counselors to mediate successfully in large numbers of contested divorce proceedings. When there was no settlement, the family court judge was forced to adjudicate property and child-related conflicts. Second was the inability of the process to address the emotions stirred up by a divorce. Men who felt they had been treated unfairly-- especially in allocation of child custody by the court--committed several violent acts. One even murdered a Family Court judge.

The third problem was the reappearance of fault. Judges discovered that they had to assign blame to one of the partners in order to justify award of child custody and to deny visitation privileges. Family court judges, for example, followed the practice of denying fathers all access to their children following the divorce if the mother simply alleged child sexual abuse.

Fourth were the long judicial delays experienced by many couples seeking divorce. The extended waiting period between filing the petition and issuance of the final decree mean that the initial hasty provisional orders for property division and child custody issued by the court were for all practical purposes irreversible by the time the case was ready for a full hearing. The delays increased the cost of pursuing a divorce.

The fifth problem was a vendetta by the press against the Family Court. Under the Family Law Act, the proceedings of the Family Court were closed to the public. Publishers, angered by the loss of a kind of news which their readers had found especially titillating, took their revenge by printing a constant barrage of attacks on the workings of the court and the no-fault law. Public enthusiasm for the new court displayed at its opening in 1976 soon gave way to widespread public cynicism about the institution.

The sixth problem was the reality that after divorce women are often worse off financially but men are better off. The demands from women that judges enforce child support and alimony orders and take into greater account their contribution to their husband's economic success went largely unheeded. Thus, substantial numbers of both divorced women and divorced men became vocal critics of the Family Court.

Accompanying the failure of the effort to remove fault from divorce was sustained institution-building by the tribunal's Chief Justices. The Family Court judges demanded a number of changes, each of which was eventually made. First formality was reintroduced. Under the initial concept, Family Court judges were seen as "helpers" and thus did not wear robes or wigs and did not sit on high benches but at tables with the parties. By the 1990s they were wearing robes, the Chief Justice was talking about the advantages of wigs and the judges were sitting behind raised benches. Second, impressive and expensive courthouses were constructed just for the Family Court. The buildings in several major cities were lavishly decorated, cold temples of justice, which intimidated and confused the parties rather than warmly welcoming them and extending a helping hand. To protect the judges, the courthouses took on fortress-like qualities.

A third demand was equalization of salaries with the judges of the more prestigious Federal Court. Even after the equalization of salaries, however, federal judges refused to consider their Family Court counterparts equals and balked at sharing buildings, meeting space, courtrooms and even libraries with them. The establishment of the Family Court meant that being a federal judge in Australia was no longer as prestigious as it had been when the state judiciary processed divorces.

The latter chapters, in which the author attempts to present ?a balanced account" of the changes the court has undergone and the demands for additional reforms are not as informative as the early historical chapters. The author obviously has ambivalent feelings about the changes that have occurred. On the one hand, she supports the goals of the original reformers but, on the other hand, is reluctant to criticize the court for moving away from the no-fault, helping court model.

This study has important implications for advocates of the alternative dispute resolution movement in the United States and Canada. The fate of the Australian Family Court reminds us that when strong emotions are involved, the stakes are high and the relationship between the disputants has broken down, negotiation and mediation are not likely to succeed. Human nature appears to be strongly attracted to the concept of fault. It is natural to condemn injurious behavior as morally wrong and to seek punishment of the wrongdoer in a public forum. The transformation of the Family Court from a "helping" to a highly formal adjudicative institution illustrates how judges pursue their own self-interest when they have the power to shape their corner of the judiciary. As heads of institutions, chief justices will seek larger budgets, more personnel, more comfortable quarters and ever-greater jurisdiction.