QUARTERLY ESSAY 17 'Kangaroo Court'

 

Correspondence

Peter Ryan

Nobody expected John Hirst’s “Kangaroo Court” to tell a sunny story. The roots of the Australian Family Court feed so deep in swamps of human malignity and spite, in conjugal hate and juvenile pain that many of its fruits are bound to be poisonous. The Family Court is said to be the source of more complaints made by citizens to members of parliament than any other subject.

From Hirst’s careful evidence I learned that this court drives litigants to suicide, does not enforce its own judgments, runs a poison-pen service, acts with heavy prejudice against male litigants (husbands), has allowed the proliferation of lawyers with their crippling bills of costs, inspires escalating perjuries, is a gross abuser of human rights and “is itself a child abuser”. It is a failing institution which embodies the core moral contradictions of our age.

Whew!

Hirst treats the history of the Family Court as a product largely of Alastair Nicholson, its chief justice of some sixteen years, now lately retired. Many have seen him in the same light as Hirst – as a judicial practitioner of wrong-headed self-righteousness – though it is rare for him to draw criticism from feminists. The former Chief Justice maintained his own steady course, undeflected by the cries of pain and dismay, and in the face even of legislative attempts to point Australia’s divorce law in a less destructive direction.

Hirst’s main objective did not require him to provide any more personal information about His Honour than the Quarterly Essay sets out. Yet many a reader may feel curious about what manner of man presided over the court which bulldozed such changes into the Australian landscape of marriage and family. Nicholson has forthrightly proclaimed his position, and resolutely defended it, not only from the bench, but also in the public forum. By many observers over the past sixteen years, he was seen as a rubicund and imperturbable judicial Mr Toad, motoring along with his exhaust on fire, as he waved gaily to the frantic crowds trying to warn him of his peril.

In fact, Alastair Nicholson enjoyed an unusual breadth of judicial experience, for he was for some six years a judge of the Supreme Court of Victoria, and held office also as a judge of the Federal Court. From 1987 to 1992 he was (presumably in a peacetime, part-time capacity) Judge Advocate General of the Australian Defence Force. Though he has left his Family Court behind, it seems unlikely that we will cease to hear the strong and undoubtedly sincere opinions of Alastair Nicholson.

Hirst’s story of the Family Court leaves its appalled reader suspended between tears and rage: the shattered lives, the ruined reputations, the bankruptcies that follow the legal bills, the enduring juvenile doubt and pain – surely all these might be made the stuff of drama, when they come to their next telling?

Not a sociologist, not a lawyer, not a psychologist, not a social worker, John Hirst is a historian, whom decency and conscience persuaded to make this long detour from his accustomed work. But the training and the habits of a historian have strengthened his arm. His ugly tale emerges from facts carefully assembled and tested; the links in his chain of logic are well-welded and firm; his language is shiningly lucid. (I found not one sentence that needed two readings to extract a meaning.) Although his censure is sharp, his telling is always civil and calm.

Hirst has not been one to waste time on the futile academic sterilities of “history wars” and the like. He gets on with it, and shows that historians, after all, can actually be useful. This scorching Quarterly Essay furnishes a model for undergraduates everywhere – how the job should be done. Is it too much to hope that some established historians may read this, and learn something?

 

Peter Ryan was the director of Melbourne University Press from 1962 to 1989. He is the author of Fear Drive My Feet and, most recently, Brief Lives. For fifteen years he was secretary of the Board of Examiners of the Supreme Court of Victoria.

CONTINUE READING

This correspondence discusses Quarterly Essay 17, 'Kangaroo Court'. To read the full essay, subscribe or buy the book.

This correspondence featured in Quarterly Essay 18, The Worried Well.


ALSO FROM QUARTERLY ESSAY

Katharine Murphy
Scott Morrison and Pandemic Politics
Judith Brett
Resources, Climate and Australia’s Future
Margaret Simons
The Tragedy of the Murray–Darling Basin
Peter Hartcher
Waking Up to China’s Challenge
Annabel Crabb
Australia’s Parenthood Trap
Erik Jensen
How Scott Morrison won and Bill Shorten lost