HOLDING DADDYS HAND: MEANDERING
THROUGH AUSTRALIAN FAMILY LORE
Intro
Some 50,000 couples will divorce in Australia this year. A middle
class divorce can cost you $ 15- $80K (plus) in legal fees if contested. You may
lose 65% of the value of your home equity and savings, and another 5-10% to lawyers
and real estate agents. If you divorce while the kids are under the age of 16,
your time with your children is determined by a judge and will be extremely
limited. There will be inordinate delays
of up to 2 years while its all sorted out. Australian no fault divorce system is
in complete melt down right now, hugely expensive, and very nasty and very bitter.
Because they charge by the hour lawyers just don’t have any incentive to tell
you the big picture as to how your divorce will unfold. Nonetheless do get comprehensive
legal advice early, and sad as this is, play the awful system we have for all
its worth. Women take huge advantage of the current malaise. As a first measure
however if you can avoid the court system by doing a private deal with your
spouse do so at all costs- the formal system
is hopelessly inefficient, especially brutish, maximises conflict, and is
deeply ideological. Despite the promise that no fault divorce in Australia would
ease tensions, it’s a social experiment that’s become a huge social policy failure, living up to
very few of the objectives its original advocates had envisaged.
BUT FIRST A LEGAL
WARNING (which isn’t as long as the one on a US ski pass). HERE IT IS – hey, you
can’t sue us. Ever. This is a “dummy’s blog” mate; it’s not a guide. We are not
lawyers, well 2 of us were sort of law students, but like way too many years ago, and never qualified. Rather
this is the reformatted diary of a few middle class daddies slog through the
morass of Australian divorce law. A brain dump and a plea for law reform. This isn’t legal advice- it’s a series of diaries,
thoughts and war stories, and much of the legal stuff may be wrong, will be out
of date, or is our misunderstood synopsis of what we were told and then our
take on that. It’s just that lawyers don’t tell you what the lie of the land is
until after the event. And will charge you $ 50K to get out of first gear. So here’s
our take- just read at your peril. Most importantly pay for your own legal
advice; ya bludger ! And it’s been sanitised to mix events across
divorces, obscure the identities of all of those involved, with names and nationalities and characters chosen at
random, clearly wrong, always changed, and mixed together. You cross indemnify us
in the sum of $2 billion, just by reading this. Don’t act on it. But think.
Overview
1.
You
may exit by the forward stairs at anytime- Since 1975, Australian marriage breakdowns have
been governed by a legislated concept of no fault divorce; however while fault is not relevant to initiate the divorce process,
the courts interpret that to mean that fault really is relevant to what assets
you get allocated and when you are allowed to see your children. “No fault” divorce
in Australia is immensely adversarial, in large part because lawyers who
control the system are incentivised to devise ways to make it so. So right now “no fault divorce” in Australia simply
means that either spouse can walk away from a marriage (or cohabiting
relationship, an issue not dealt with in this blog) at any point. To instigate
a modern divorce a person no longer has to prove there was an affair, or that
your spouse was unreasonable, a drunk, committed
some crime, or had abandoned the family. Either spouse can just say they have had
enough, even if the direct cause of the split is trivial or serious, or one
partner gets cancer and the other frankly just can’t be bothered, your sex life
is dead as a doddo, menopause v andropause, or simply a financial desire to control
assets if future earnings of the main bread winner become uncertain.
2.
“For
better or worse” is a religious vow, and an option: the law says it was never
an agreement. “No fault” means “no notice, at will, each hour, for any
reason at all, venal or otherwise. Marriage is really just dating with an
obligation that should it fall apart you will look after your kids, divide your
asset base based on a coin toss, and enrich the lawyers. Whether the no fault system
is good for all partners, bad for kids, or inevitable given other societal
changes in attitudes and economics, is
irrelevant to your situation. Optional relationships are where we are at. Modern
Australian marriage is really like a career in a large corporate - there is
simply no safety net anymore. Other nations also do no fault divorce, in
different ways, and some think that no fault divorce is a horrid social
experiment still being played out and that it’s social cost well outweighs benefits
to individual freedom. Whatever your views, you should read this blog; for
whether you go to court or not the legal process will impact your split up
because at some point your spouse will get separate advice from her mates or lawyers,
and will condition her behaviour accordingly.
Marriage is dying as a
legitimate institution, is being adopted by the LBGT community, an issue beyond the scope of this blog. There
are lots of reasons to divorce
"'These Boots Are
Made For Walking': Why Most Divorce Filers Are Women" Margaret Brinig and Douglas Allen (2000) Am Law Econ Rev (2000)
126. “children are the most important asset in a marriage and the partner who
expects to get custody is by far the one most likely to file for divorce………….women
certain they will get custody, they divorce specifically in order to gain full
control over the children."
3.
Just
another shrimp on the barbie- Many of us, when married, assume that an
Australian no fault divorce
will simply result in the law ensuring a quick and decent equal sharing of property and equal
sharing of time with the children. That’s what its promoters promised; but not one of these assumptions is correct.
Our 39 year experiment with trying to give effect to “no fault divorce” remains
especially wobbly. The process we have ended up with to give effect to no fault
divorce suffers from a number of systemic problems:
·
Traffic lights are out – There
is no Family Law; rather there is Family Lore. Australia has a system of “discretionary
justice”, whereby judges consider each case on its own facts and divide
property as they see fit. Given the plethora of reasons to divorce, and what
can happen afterwards, it sort of sounds
sensible, on its face. Unfortunately the
lack of rules results in lots of game playing, contrivances, and huge delays. The
system apparently worked when divorces were few in a number but the “bespoke
justice “ system has now utterly collapsed.
·
Little Fockers. There are
also no rules on how to parent the kids going forward. The community wants equal
parenting time and a law was passed to this effect by John Howard, but this was
undermined by Aunty Julia. The courts just flatly refuse to comply with community
expectations of equal parenting, and instead subject your family to a 2 year
queue through the court system at a huge financial and emotional cost. At the
end they favour one parent as the primary caregiver (almost inevitably the
women, and in the leading case, even though he had been a stay at home dad). Men
and woman can’t agree a default base case , so the courts are chockers with individual
analysis of each family on a case by case basis. That means no rules with long
queues and bitterness in the courts. Time with the kids is, in all but words,
an issue of who is at fault (who is the better parent, but in practice it’s all
about hurling fault based allegations and paying dosh to lawyers), but dressed
up as an ideological assertion about stability for the kids.
·
Dick the Butcher was right .
Former Attorney Generals Murphy and Ellicott tried to “de lawyer” the process;
but only succeeded in part. So currently we have “no fault in theory, but hugely
adversarial in practice” family law system. The 1975 Act didn’t explicitly say
“oi, don’t bring back fault based divorce by any other means, you stupid boofheads”
so the lawyers have ensured the system itself is still bitter and nasty because
that’s what litigation does. The
Australian experiment with lawyers controlling no fault divorce is about as
successful as the attempt to make capitalism work in Russia post 1990: leaving
the KGB guys in control meant they reverted to type. So to while in legal form
lawyers apply the Family Law Act 1975, in substance they still apply the lessons they
derived from The Matrimonial Causes Act 1959. Individually nice people and not
in this game for cash- but nonetheless their economic incentives highly correlate
with outcomes. In any event instead of speed or simplicity our community pays for
partial fault divorce via high transaction costs, delayed justice, and perverse outcomes driven
by a profession focused on form, not substance; slogans not outcome
optimisation. The Family Court, when
established was a neat idea but is now a scary vortex, with long delays. Reform
after reform of its processes by both Liberal and Labor Parliaments over the
last 38 years have failed time and again. The lesson of the Australian
experiment is that for the no fault divorce to work the lawyers with their time
based costing incentives, have to assist, not control, the process. No fault
divorce doesn’t work with lawyers traditional obligations to maximise their
clients “best case” spins straight across the best interests of the children. Divorce
can be deeply bitter, but the lawyers ensure it is. And any sense of decency? As
The Bingle would say: where the bloody hell are you?
·
No Man Date - The family has been a central unit of
society for many centuries and the unravelling of “the family unit” has simply not
been well received. There is no unifying theme in The Family Law Act; it’s a
huge mess and looks awfully like something drafted by the guys at the Tax Office
at 4 am, after a boozy staff party. The 1975 changes were imposed, not really ever
sold by politicians, and enacted with limited community input or comprehension.
Hence frustration and disgust is directed at Family Court judges themselves, or
the family lawyers- the people delivering the message. Although sometimes,
frankly, the Family Court and their buddies don’t deliver the message- they also
invent it. These problems are compounded by intolerance - the system fights and
squirms against attempts at reform so even when there is widespread community
consensus, such as the case for joint parenting, then the lawyers argue that the
area should “really be left to the experts” and thus they actively subvert the
“no fault political deal” and LOL at the law. Expecting
lawyers to mould discretions is like asking teenagers to be careful with alcohol.
Its time for some rules; the courts are as inept as anyone else with open ended
discretions and only Parliament can make specific risk trade-offs. Lawyers can
do form and process well, but on matters of substance they get lost.
·
Anger Management screens on Channel 9 on Thursday night: otherwise
fuggedaboutit - The system is simply not built to address and
diffuse the inevitable anger that arises in respect of a relationship breakdown,
and so anger cascades through the system.
Firstly, no fault divorce has not decreased the temperature at all; and mainly
that’s because we have no agreed rules; “it’s a jungle out there”. The Family Courts
aren’t really courts, they are allocative bureaucracies. And hugely
ideological, which makes matters worse, because they just aren’t perceived as
referees at all. Secondly, as to personal anger, the system deals with anger
through” processes”- which mean a form based avoidance of addressing the
underlying issues and thus maximising the emotional ride. Anger is thus
deployed in issues about child access, the making of extravagant legal claims,
or in more nefarious ways. Thirdly the Family Court as a dispute resolution mechanism has completely broken down. Anger arises at the
delays as much as it does the outcomes. And fourthly some not insignificant
part of the family law bar are just ambulance chasers and the court has very
little to zero control over them. Ask lawyers from other parts of the
profession and you get the same answer; they tend to be regarded as smug little child
traffickers. The incumbents, of course, hold anger to be innate, all about Mens
Rights nutters, and so their solution is all about passing more laws and more lists,
rather than focusing on substantive concerns. The system needs to be run by
logistics experts at the behest of psychologists and counsellors. Clinging to
the “lawyers first ” paradigm is a core and chronic problem.
4.
YOLO-
so you will face a choice, if your ex-spouse hates mediation and just wants a
scrap, and has been told by her mates to “use that broken down family law
system and take him to the far king cleaners”. Because, despite no fault divorce,
that can still be done. Option 1 , means you can become all bitter and angry at the
fraud of this failed social experiment. You can get angry that 50-50 isn’t the
deal, the courts are just hopelessly unfair, and that you are being screwed
over by some lawyer who has a direct financial reward for gaming the system and
making your separation much more indecent and drawn out than it should have been.
If this you, then join a men’s rights
group, or head to the pub and rant, for there is indeed systemic bias against men, its an awful system, and you are powerless to address systemic
flaws. As a bloke, being powerless is not something that comes easy at all.
Especially when it involves those kids
of yours this is a rough ride emotionally, for you are genetically programmed
to protect them. Some of this bit isn’t understood by The Women Who Now Run The
System, and thus disgust gets taken on the Court, as an institution, itself.
But look, frankly, turning up in the Family Court complaining about how their
system doesn’t work actually backfires: you are just not entitled to complain in
Court about how awful and irresponsible the legal experiment truly is. They
don’t do dissent- that attracts the “male anger” label and gets ignored by the
incumbents who own the system. If you want to do that lobby your MP because
it’s a systemic issue. The Family Court and the lawyers are addicted to what we
currently have and won’t change. Lobbying for change of the law is good, but it
won’t affect your family, and when you are gone the lawyers will change the
rules, yet again, to favour the incumbents. Option 2, if you have money, is
that you can sue everyone in sight - and while cathartic that takes your eye
off the ball- well, you focus on the fight not on the welfare of your kids. The
lawyers will be better off and get paid to dispute everything. Yet beware that
even if you do “win in court” over a
long period, there is an even bigger problem.
Because of the courts focus on ideology, there has just been no time in
the last 38 years to evolve any sort of compliance culture in the family lore
courts. So litigation is a waste of everything; only an expensive way to signal
your anger. You are better off spending money on the kids that on the Billy
Goats Gruff who control the causeway of life. Or Option 3 is that you can pay up more than
your equal share , agree to maintenance, acquiesce to seeing your kids only
occasionally, and move on. For at the end of the day that’s what family law is
about: a price to be paid, a toll bridge in life controlled by unelected
lawyers going mad on mescalin. Frankly, while unfair, the faster you bend over,
take it, and move on the better for you, and your kids. The current family lore
process is an enormous tax on society, deferring decisions, making people
hopelessly unproductive, churning huge Wonga for lawyers, and destroying lives.
Fighting is hard, bitter, and subtracts from other enjoyments in your limited life
and that of your kids. You face a system built by and supporting an army of exhausted
suburban solicitors, doe eyed junior barristers, specialist family shark
lawyers, ideological judges, smug senior barristers very often of limited intellectual
pedigree, over worked mediators, well-meaning academics, good willed counsellors,
and talk therapists trying as best they can to get a word in edge ways. They
aint giving up and they play this game a lot. Pay up. Move on. If you are
thinking of separating, give serious thought to doing what many who are exposed
to the system do: wait until the kids have left home, find some way to get hold
of the assets in your control, or enough cash to last out 2-3 years during the melt down, and then file. No
fault divorce, Australian style, is no
different really from fault based divorce at all in substance.
Pay a lawyer . But first buy a guide and save on lawyers’ fees. With the extortionate
costs of litigating many people self-represent. We don’t suggest you do this as
you get done over and the lawyers out gun you- it’s a bit like the false economy
of not using a motor mechanic. If you are going to fight , you need to go in
with all guns blazing, no matter how wasteful it all is.
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See also
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