National Observer Home > No. 65 - Winter 2005 > Legal Notes
LEGAL NOTES
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 exwife:
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 exhusband)
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 exwife.
The treatment by the court of family
trusts in this way has undermined,
if not abrogated, the rights of thirdparty
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.
I. C. F. Spry
National Observer No. 65 - Winter 2005
