Sydney's top family law barrister reputedly charges $10,000 a day (his retainer is twice that). Those without a legal budget, or not poor enough for legal aid, are increasingly representing themselves in court.

Abandoning lawyers

On some days as many as half the court rooms are occupied by untrained advocates blocking up an already clogged system with emotive arguments that judges feel compelled to listen to out of courtesy and compassion.

The problem is so bad Attorney-General Christian Porter decided to merge the two family law court systems by January 1 to speed up the miserable course of "justice". The Senate had other ideas.

Two weeks after the New Year's Eve fireworks erupted from the Sydney Harbour Bridge – surely ushering in many couples' long journey to divorce – two family law courts still operate in the land.

Family Court of Australia. Angela Wylie

Making courts more efficient may not speed them up. Ask almost any lawyer in the game and they'll tell you why a tiny proportion of cases end in front of a judge. It requires a specific personality to go all the way.

"Litigious in nature, controlling or emotional, and they are the ones that end up in court and the ones that end up costing a lot of money," says Melbourne solicitor Geovanna Jammo.


One lawyer watched as her client's ex-wife undid the top two buttons of her blouse before addressing the judge, a male. Years later the judge remembered forcing himself to keep his gaze above her chin.

The price of a decision

An entry-level fully litigated divorce goes for around $80,000. A Woollahra or Toorak break-up with complicated business structures to unravel and multiple hearings over the fate of children can top $200,000. Some finance professionals report coughing up close to half a million.

A Brisbane builder lost unsupervised access to his child for two years after he was falsely accused of sexual assault. Viki Lascaris

Under well-established rules, judges generally have about 10 per cent leeway to allocate property, says veteran Sydney barrister Elizabeth Picker. The cost of the case is not even tax-deductable.

Recognising the complex motivations of clients (ie, often hatred), Jammo encourages many to consult a counsellor before important legal decisions. "It allows them to discuss the emotional issues with the psychologist and the legal issues with me," she says.

Unfortunately, Family Court filings aren't renowned for honesty. Forensic accountants do a solid trade trawling through corporate structures their owner may not fully understand. An army of social workers assess parenting skills.

"The child and the father engaged in numerous activities and the father is noted to attend to such things as ensuring that the child has sunscreen and a hat on when they play outside," is a standard report.


Attorney-General Christian Porter's plan to merger the two family courts by January 1 has been frustrated by the Senate. Alex Ellinghausen / Fairfax Media

Holding on to a lie

Sometimes untruths become so central in divorce that one side holds on to them at immense personal cost.

A Brisbane nurse in 2016 accused her ex of assaulting their three-year-old son. The father, a tradesman, immediately lost access to the child. Protection of children is family law's paramount priority.

In late 2017 the tradesman got a three-day trial in front of a judge, Catherine Carew. He and his lawyers asserted the allegation was a lie and the boy's mother was going to brainwash the boy into believing he had been raped.

"This is a case where the mother considers that the father is a narcissistic, compulsive liar who only wants to spend time with his son so that he can abuse him and the father considers the mother has falsely made the most heinous allegations against him for the purpose of keeping him out of the child's life," Carew wrote in a judgment five weeks later.

Part of the case was fought over whether the child had woken up upset one night and said "Dad: a monster" or "Dad! A Monster."

In what must have been a horrible experience for everyone, including Carew, the judge sided with the father. The mother was so convinced, falsely, that her child had been abused that it be wouldn't healthy to remain with her, Carew said.


Half his life

The mother appealed. (Family Court litigants can't legally be identified.) A week before Christmas, three judges unambiguously backed Carew's tough call.

"There was an unacceptable risk of harm to the child if he continued to live with the mother," the judges wrote. "Hopefully the child would end up with a meaningful relationship with both parents, as opposed to the continuation of the status quo where the child could not have a meaningful relationship with his father."

A conflict between a mother and a father over someone they both loved ended tragically for all after three years and eight months in court. The boy was two when it began.

Even if the Senate agrees to Porter's plan, professionals don't expect the Family Court to be much different.

However well intentioned, no politician can change human nature.