Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

My makeup is dry and it cracks round my chin… Certainty and family law

Parliamentary inquiries are something of a joke.  Although they’re good at considering proposed legislation (it’s a way for experts to have direct input into parliamentary deliberation of bills), they tend to produce endless unread reports.

The Greens, in particular, have a habit of calling for inquiries into whatever was the topic of the latest episode of Four Corners.  No matter how obviously the journo clearly misunderstood the topic, the Greens will call for a parliamentary inquiry.  But they’re not alone in their call for parliamentary busy-work.  There’s a parliamentary inquiry into ‘effective approaches to prevention, diagnosis, and support for Fetal Alcohol Spectrum Disorder‘ which definitely sounds noble, but we might wonder what expertise politicians are going to bring to the topic.  There’s an inquiry into the ‘impact of feral deer, pigs and goats in Australia‘.  And one into ‘nationhood, national identity and democracy‘.  For afficionadoes of seismic testing, we have the inquiry into the ‘impact of seismic testing on fisheries and the marine environment‘.

Endless, endless reports that nobody reads.

And it’s clear that nobody reads the reports.  The decision to have an inquiry into the family law system should, one would think, have been redundant given we very recently had an inquiry into the family law system.  Unfortunately, nobody remembers that inquiry because nobody read the report.

Inquiries are for individual politicians to get their fifteen minutes on a hobby horse.  That’s it.  People need to calm down.

This latest inquiry is clearly an opportunity for Pauline Hanson to increase her profile among the Family Court Dads electorate.  For what it’s worth, I don’t think there’s anything wrong with that.  See above for examples of where parliamentary inquiries are held for their performative value.

I could write an entry about journos as intermediaries of parliamentary inquiries. Why is it that some parliamentary inquiries get huge profiles, but others do not?  Why did this inquiry become front page news, but the earlier inquiry into the family court system didn’t?  Why do we get blow-by-blow accounts of the work of the two inquiries into press freedom, but absolutely nothing into any of the inquiries about regional Australia? Did anybody outside the usual suspects know about the parliamentary roundtable on the proposal for fixed terms for the House of Representatives?

I instead want to write something that has more of a focus on theory.  I want to sketch out a few arguments that, with any luck, might make people think about family law a bit differently.

And I want to start in a really awkward spot: should we take Family Court Dads seriously?

‘Family Court Dads’ is a pejorative term used to describe a certain cohort of men who, motivated mostly by misogyny, harbour conspiracy theories about the family law system.  The system is stacked against them, you see.  Their ex-wives take child support, get remarried, and enjoy steak dinners, while the Family Court Dad is struggling to pay the rent for a converted semi-detached shithole and eating KFC’s mashed potato for dinner.

And yet, despite the obvious defects in the view, it is a prevalent view that the family law system is stacked against men.

As much as I really think they’re an obnoxious bunch of creeps, there are a few things that worry me about their persistent lack of trust in the legal system.  First, I’m worried about the impact of their views on how others will engage with the legal system.

I’ve encountered more than a few situations where people made absolutely terrible legal decisions based on misunderstandings of the law arising from misrepresentations in the media.  I’ve seen people settle cases for way less than they should have based on their incorrect view that there was no point fighting because they would surely lose.

If there is a public perception that the family law system is systemically unfair, then people will not attempt to protect their rights. But it’s only by taking their concern seriously that we can engage in trying to change the perception.

That gets me to the second point. Although they are obnoxious creeps, their views have an obvious parallel with another view: those who think the family law system is systemically biased against women.

A lot of the reporting about the family court system over the past week has been characteristically bad.  Statistics that make absolutely no sense are offered in support of opinions based on factually inaccurate statements about the law. So I did what I usually do when I’m vaguely interested in a subject: I went straight to the source material.

Nothing trashes your Sunday morning like reading family court cases.  They are miserable.  They are so miserable.  Two people loved each other enough to form a close relationship, maybe have a family.  Now they’re duking it out in the legal system and they fucking hate each other.  Really fucking hate each other.

Besides misery about the human condition, I also came away with a lot of admiration for our judicial officers.  They are given a limited opportunity to look into the complex lives of miserable people and are asked to find something that looks like a just outcome.  The cases that I read demonstrated exactly how difficult their role is, and the seriousness with which they take their job.

And yet ‘both sides’ of the discussion launch attacks on the judiciary, fuelled by pretty ordinary opinion pieces in the press.  One of the cases I read was really crushing.  When you read the details clearly, it was obvious that the mother had really serious life problems and was pressuring her daughter to make false allegations about the father. The court came to that conclusion reluctantly and only when the evidence pointed overwhelmingly in that direction. I posted the case to Twitter and, within minutes, somebody had responded how it was an example of how the family court system punished women.

There are two aspects here.  First, there is a lack of regard for the horrific complexity of the cases that courts are trying to handle.  It is really easy for a journo to reduce a case to an easy-to-digest narrative, but we really do need to start from the position that these cases are really hard and shouldn’t be sensationalised.  The second aspect is that there is no shared understanding of what family law is designed to do.

Family Court Dads hate the system because — animated by misogyny — they think the family law system is about a simple division of property between the two adults.  Straight down the middle across the chattels: half the house, half the bank accounts, half the kids.  And when you try to explain that children come with costs, and that’s why you need to pay child support, they lose their minds because they only conceive of the problem as more property being distributed to the ex-partner.

The other side of the debate hates the system because — animated by an abstract and somewhat unreal sense of justice — they think the family law system should be a one-stop shop for a full range of problems.  Thus the repeated recommendations that the family court take over areas of law related to family violence, and that it be ‘more connected’ with other state and federal agencies.  And that’s why you get the weird arguments from journos about the way the family court handles allegations of family violence.  One journo is incandescent with indignation that a father could still get access to a child even when the mother has made allegations of violence against him.  But is the family court the right forum for the allegation of family violence to be heard?  And to what standard should those allegations be tested?  On the balance of probabilities?  Beyond reasonable doubt?  Some kind of Briginshaw v Briginshaw standard?

Note that the above is only talking about this issue within a legal framework.  We might have strong moral reasons to presumptively believe women when they make allegations, especially to create an atmosphere in which people feel like they will be believed when they talk about their experiences.  But when you’re talking about using state violence to partition a family, those moral standards aren’t sufficient within the legal framework.

Which just restates the core problem: what do we really want the family law system to do?

I hope these issues get ventilated given the amount of media interest in this inquiry.  Given that nearly all inquiries are useless, I won’t hold my breath.  But I really want somebody to grill the Family Court Dad types and ask them: what does a fair outcome look like to you, and what do you think the family law system should achieve?  Once we crack that nut, we can do more to shape the public imagination of the system, and ensure that people feel like they can get just outcomes when the court performs the fantastic task of trying to get a black letter law answer out of questions posed by messy, complex, and horrible breakdowns in relationships.

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