The increasing powers of the Family court.

The Family Court of Australia has been unfortunate in that two of its Chief Justices have been political appointments from the political left. The first of these was Ms. Elizabeth Evatt, one of the controversial Evatt family from New South Wales. The second was Mr. Alastair Nicholson, who was appointed in 1987. Ms. Evatt was an extreme feminist, and has been a member of the U. N. Committee on the Elimination of Discrimination against Women. Like Mr. Nicholson, she was not a supporter of the traditional concept of marriage.

The evident prejudice of the Family Court in favour of women in custody and access cases has been discussed on many occasions. What has not often received sufficient consideration, however, is the use of statutory powers by the Family Court under the influence of Ms. Evatt and Mr. Nicholson so as undoubtedly to favour women and prejudice men and children in regard to matrimonial property.

It has become established broadly under these two judges that the Family Court approaches the division of property by prima facie granting half of it to the former wife. This rule is not inflexible, but when it is departed from the departure generally favours the ex-wife: for example, she may obtain a share much greater than one-half if she obtains custody of children (often to the effective exclusion of the ex-husband) or if she is able to persuade the court that she will find it difficult to obtain employment.

Some three-quarters of divorces are instituted by women, and because a no-fault assessment is made under the Family Law Act (as introduced by Mr. Lionel Murphy), the following position arises commonly. A husband and wife may start off with virtually no property. However substantial assets are acquired during the course of the marriage, paid for principally and sometimes wholly by the husband. Later the wife decides to divorce him. Perhaps she wished to enter into a relationship with another man; perhaps she simply tires of her husband; perhaps she has been informed that under the Act she will be able to obtain more than one-half of the family assets. The husband hence becomes divorced, and sees more than one-half of the assets that he has built up awarded to his ex-wife.

Generally the ex-husband finds himself no better off if he has placed part of the family assets in a trust. Where he is a beneficiary and has, as is normal, control over the trustee of the trust, the court treats the trust as his "alter ego", regardless of the interests of the children of the marriage. That is, all its assets are treated as his for the purpose of requiring him to make a transfer of property to his ex-wife.

The treatment by the court of family trusts in this way has undermined, if not abrogated, the rights of third-party beneficiaries of the trusts, such as the children of the parties. Family trusts are often set up for the sole purpose, or at least for a dominant purpose, of providing for the children of the marriage. However if the court requires, in effect, those assets to be transferred to the ex-wife, little may remain for the children. In effect the Family Court thus required property destined for the children to be transferred across to an ex-wife (who may have ended the marriage for reasons involving moral turpitude). It is unfortunately clear that the Family Court has general powers to make orders of these kinds. But it is not obliged by the Act to make those orders, and a more equitable exercise of the court's discretion would be appropriate.

Recently the Commonwealth Government has unwisely, at the instance of Mr. Alastair Nicholson, enacted legislation giving the Family Court further powers to detract from the property of third parties (a new Part 8AA of the Family Law Act), and this legislation will be discussed in a future issue of National Observer.