The Family Court

The Family Court, from its inception in 1977, played a major role in administering a fundamental change in the configuration of inequality in the intimate, sexual, and property relationship between men and women, in the definition of men and women and the emerging question of gender diversity, the fate of children in that changed the world of inequality and diversity, and in consequence what we now understand as ‘family’. The socio-political role of the Family Court and its sequelae was to administer the collapse of the Christian church in this relational space. The church had little interest in marriage, sexuality, and the sexual relationship between men and women and its consequences until the Council of Trent (1545 – 1563) produced its response to the Reformation. Through the Reformation and the Counter-Reformation the church took a deep interest in marriage, created the sacrament and covenant of marriage, banned the ancient practice of betrothal, re-worked celibacy, and became deeply interested in the relative fate of penises and vaginas, whereas prior to this their interest had primarily been in penises and ejaculation.

This sets the backdrop to the current malaise in the Australian Family Court. The Reformation took about 500 years to ripple through the West, certainly until the mid-20th century when the West began to implode after a long period of unprecedented economic growth and prosperity. Coincidental to the church becoming interested in people and appropriating marriage and sexuality, the West invented competition and capitalism, a coincidence that is rarely ever spoken. It is arguable that the church would not have had the resources to administer its appropriation of marriage and sexuality without the bankroll of capitalism. It is also worth noting that the Reformation and the Counter-Reformation are the first revision after 1500 years since St Paul adopted Jewish marriage laws in their entirety in return for the protection and survival of that nascent group of Christians wandering around the desert behind him.

The Reformation is also coincidental to Copernicus (1473 – 1543) and Galileo (1564 – 1642) and the greatest discovery since the wheel, that the earth and, we as humans, are not at the centre of the universe.  That the Earth turns around the sun. Galileo recanted and the next 500 years is a history of the West desperately denying this truth as it populated and prospered and exploited and appropriated everything and everyone around it, as it dug deeper and deeper into controlling the sexuality of its flock, until the entire thing imploded and exploded in the 20th century. Here we are with this pandemic and this population and climate crisis hard upon us, at the end of 500 years of denial and inflexibility cushioned by an unprecedented prosperity that has bankrolled itself through the great economic mystery that is capitalism. The West is now in retreat, backing away and out of the Orient. As Muriel Porter noted, the Reformation is now over. We are now ready to embrace Galileo’s truth. We are not God. This has all been written before and mirrors the world before we discovered that fertility is defined by women, not by men and that a man’s seed is less than one half of the story. The Family Court is a particular invention of the West to administer the collapse of the Christian Church’s hegemony over Western marriage and sexuality. The Church and State were one and the same thing when this all came to pass. When democracy is discovered and vigorously pursued some centuries post-reformation, the separation of Church and State does not extend to sexuality and marriage, they are not democratised with the ancient inequalities remaining in place  I with the State adopting the mores of the church. That did not work.
I state all of this because, in my opinion, the Family Court has done its job in relatively short order. It has effectively administered the return of marriage and sexuality back to the people in a more flexible and diverse form, a mirror into what it must have been like a long time ago. The first 30 years of the Family Court in this country produced a torrent of new knowledge about love, relationships, babies, child development, attachment, sexuality, violence, parenting and much more. This was then unceremoniously dumped into a legal system somewhat unprepared for this outrage, here and everywhere else in the Western world. The Family Court is not equipped to handle the next part of this transformation into the 2000s and the big questions this Court had been pondering began to evaporate leaving it administering an endless bicker of trivia, unable and ill equipped to handle the next round of big questions, those of race and climate.

In this period the configuration of the Western family changed as prosperity took hold, fertility changed, as the mean and median age of the population moved up. The ratio of adults to children across the board has now fundamentally shifted. We now have a larger number of older and more prosperous adults arguing over a smaller number of children. It is not uncommon now to have a group of 10 adults arguing over 2 children, with those 2 children exploiting this dispute to deeply unproductive ends. This Family Court has exhausted itself through this 30-year period of social and sexual revolution and no longer has the heart for it. It has almost nothing to contribute now to the big question, that of inequality. The Family Court is left administering the bickering edge of this dispute over inequality. It has nothing to say about the major question of inequality as a fundamental constraint to dealing with the climate question.

The Family Court is now a shadow of its former self, quite rightly reabsorbed back into the mainstream legal system, stripped of its privileged status, now doing what the rest of the legal system does, administering that bickering and complaining edge of the law seeking some advantage, usually financial but no longer addressing the big questions it had become accustomed to addressing in one landmark case after another. Those were heady times now gone. It’s not that there is nothing more to do, it is just that this Court is not the place to do it. Justice Kelly’s work with Aboriginal people in the Family Court may be the last of trace of this. Disability has been removed into the bureaucracy by NDIS. The Family Court has been disinclined to tackle the contemporary mental health dilemma as the personality disorders collapse into psychosis through methamphetamines. The looming problem of school refusal appears to be of little interest.