Family Courts and the Paradox of Patriarchy: An Introduction

Family courts, with their proclaimed ideals of fairness and objectivity, often stand as paradoxical entities across the Western world.

Intended as mediators of domestic disputes, in my experience as a lawyer, they too often instead usher women (and their children) into unsafe circumstances and the grasp of financial instability, while bolstering patriarchal structures.

Too often, women wading through separation or divorce find themselves battling not only escalating court costs but also the extensive emotional and financial drain associated with protracted custody battles or the pursuit of protection orders.

Accessing shared marital or relationship property, which should ideally provide a financial safety net, can become a labyrinth of resistance and manipulation too.

Too often women are left afraid or unable to pursue (what are purportedly intended to be) their rights to a better or fairer set of circumstances — both for themselves, and their children.

Beneath the facade of equity, many women (and their children) are in fact left clinging to the edges of poverty, with many then also facing the continuing threat of violence or abuse, despite having left their abusers.

Oh, but “what about the men?” I hear the patriarchal defenders cry.

Don’t you know that women are the ones who “put men through the wringer?”

They steal “his” property and money, “don’t you know?”

And his children too.

That she likely (more than probably) did the predominant share of childcare and domestic labour within the relationship is deemed irrelevant or denied.

But, “how dare she expect to retain primary custody or care of the kids after daring to leave?” — is often the decry too.

Statistically, we know that the majority of divorces are sought by women.

Statistically, we also know that women do more than a significant majority of childcare, eldercare and domestic tasks, while almost always carrying the mental load for the family, even in this so-called age of “equality”.

We also know that there is little accounting for the physical, emotional, and financial costs that are borne by women exclusively in relation to pregnancy, childbirth, breastfeeding, and time out of the workforce.

That’s before we also account for the gendered pay gap and discrimination that women also still face in the workplace.

And we know that while women’s hours in the workforce aren’t quite at the same level as men (still a few hours behind each week on average— exact figures dependent on which country we’re looking at), almost all women contribute economically as well, in addition to the significant and disproportionate domestic, childcare and emotional and mental labour most women also bear.

Business Insider (read: male orientated journalism) in fact puts the cost of a stay at home mum at $112,962 for the 94.7 hours average weekly shift she puts in.

As they note, replacing her would require, “a nanny, a driver, a cook, a janitor, a psychologist, a laundry-machine operator, and a myriad of other professionals for the odd jobs moms do on a daily basis”.

For working mums, they cite $66,979 for the average extra 57.9 hours a week of work such women put in, in addition to their economic contributions.

Having been a (more than) full time lawyer and business owner, as well as a full time mum, I can also tell you first hand which job is by far the harder.

It isn’t lawyering or running a business.

So, to those patriarchal figures decrying women for “taking them to the cleaners”, I say this: who really did the majority of the labour in your relationship?

And I don’t just mean economically measurable labour.

I mean the 1,001 things that she did, often unseen, that meant you could work as you did during the relationship; potentially earn more than she did; and which would generally mean that you had more economic and professional development opportunities than she did.

All as a consequence of her domestic work and (where relevant) child (or other family) care, alongside all the unseen mental and emotional labour that you probably did not see or appreciate, and will likely never understand for what it is.

Yeah. Again. There are plenty of statistics that back up these realities.

Chances are, she actually probably also left because you weren’t pulling your weight in these respects either.

This is actually a bit of a running joke in our own household — gendered responsibilities having switched back and forth between my husband and I over the years, as both of us have taken turns as stay at home parents.

And where once I did the majority of the domestic tasks, now my husband does.

My husband likes to mock me a little about this — always in good humour — but with the joke that he gets why so many women feel aggrieved over the disparity of contribution.

It’s the unrecognised and unacknowledged aspect of these matters that is the biggest issue here though.

When she leaves, we often hear men decrying the loss of their patriarchally promised entitlements. The loss of her labour. The taking of “his” children, even though he will generally not have been the primary caregiver.

The expectation that he will still be expected to provide for his family, even as she chooses to seek a different path for herself, often a particularly sore point.

Alongside this, is often a partial or complete failure or refusal to recognise her more than significant contributions — often both economic and domestic. And as noted, with women typically also carrying the mental and emotional load too.

All so awful and annoying, but pretty bog standard stuff.

The bit about this story that really starts to bother me though, is when our institutions then also tacitly rally around these patriarchally understood and accepted entitlements.

That is, when relationship property, children’s custodial arrangements, or protection order matters end up before the family court, we see different variations of these same patriarchal themes endorsed and supported in what is purported to be a “fair” and supposedly “objective” forum.

The paradox deepens when family dynamics are tainted with coercive control, violence, or abuse.

In cases frequently labeled as “high conflict” by the courts, proceedings often mirror the tactics of the abuser, furthering his control as the woman and her children seek liberation.

And there is a gendered element to these issues — despite the loudly proclaimed rhetoric of mens rights groups, often backed up by family court judges themselves.

Despite the rhetoric of fairness, family court procedures often dovetail with the patriarchal desire for dominance, facilitated by societal and familial norms.

These realities — and they are realities — harsh and unjust as they are, are then most often veiled behind a curtain of denial.

Women voicing their experiences are frequently gaslit — their grievances met with claims of hysteria (other words often used to describe but meaning the same).

Courts will then lean on so-called principles of “objectivity” and “impartiality” to lend weight and authority to their decisions, with judges blithely unaware of how their own inherent prejudice and bias is affecting their decisions in relation to women (in my experience, women judges can be just as bad as men in this respect too).

This cycle of denial perpetuates patriarchal control and impedes systemic change.

It also has awful and enduring effects for the children involved — their futures tethered to the financial, emotional, and physical hardships of their mothers.

Where mum continues to feel unsafe, despite leaving the relationship, and where their lives are marked by the austerity of poverty, the echoes of the court’s inefficiencies resound.

In this light, family courts emerge not as fair arbitrators but as unwitting accomplices to financial decline and patriarchal oppression.

It took me years to understand these patterns, which I saw daily in my professional practice as a courtroom lawyer.

Over my almost decade long practice, my instincts often told me something was up, but I didn’t have the language or the necessary academic understandings to articulate those concerns.

I did in fact have to leave my legal career to fully get to grips with it all.

Discovering that there was a large body of social science research and statistics demonstrating and explaining my instincts was heartening.

But then also understanding that judges and lawyers don’t read the same — will never likely read the same, despite the relevance and application of such to their professional lives — was also enormously disheartening.

I wasn’t actually raised a feminist.

I mean, my grandmother purported to be one — she tried to get me to read Germaine Greer once in my early teens (I never did) — but her actions and words frequently didn’t embody what I would understand to be feminism today either.

My own father, like most men of his generation, inflicted all sorts of unseen patriarchal norms onto my psyche growing up too.

So much so that I embraced the (so-called) “shame” of my teenage pregnancy (not so much my father’s fault that one — more my maternal family) and then unknowingly sleepwalked my way into an abusive relationship with a man in his mid 30s, whilst still a teenager too.

Climbing out of the horrors of that, I did then build a life for myself using those modern idealistic notions of “equality” though.

I became a lawyer. Left my abuser. Attempted to rebuild a life for my two children, as a young women still not even in her mid 20s.

But without any of the language really needed to explain what had happened to me, never-mind to apply it in my professional life, I was still facing an uphill battle navigating what was to come.

I was no dummy either — I graduated with a master of law, top in my class (first class honours), soon after leaving my abusive marriage, while beginning my legal career, and with my two small children in-tow.

Yet, it would be a number of years before I began to properly understand terms like “psychological abuse” and (later again) “coercive control”.

Even as I successfully defended family violence defendants and rapists — cross-examining their victims in the process — I didn’t wholly grasp the true nature of abusive relationships or terms like “consent” in its broader context.

Like all defence lawyers, I played upon the prejudices and stereotypes that made it more likely for my client’s to “get off” — because this is what I had been trained to do, and because this was (is still) the accepted norm within the industry.

Like many of my colleagues, I preferred jury trials in this respect too. The ability to play upon a lay person’s bias and prejudice often being easier to manipulate than that of a judge.

Professional and courtroom procedural rules also essentially invite such.

That said, judges prejudice and bias are often just as bad.

Ingrained and erroneous attitudes and understandings around women who make allegations of family violence or of a sexual nature, or around women acting as “maternal gatekeepers” in relation to their children (to quote a judge I particularly dislike), reflect erroneous understandings around these things in our wider communities.

Yet we have these misguided notions around judges and lawyers being up on these platforms — as somehow more “educated” and “knowledgable” than they actually are.

I don’t doubt that our professional training gives a heightened ability to reason through problems and to read and apply written materials.

But what it doesn’t do is give us an elevated understanding of the sociological and psychological issues at the heart of all cases that come before courts.

I think my grievance with how justice systems operate is really on that last note in particular — this failure to understand and acknowledge that there is a lot legal professionals don’t know, are not educated for, and the often severe harms that are inflicted on the already vulnerable, as a consequence of such.

When it comes to vulnerable women and children, the crime is particularly egregious in my eyes.

Because not only is there often a societal breach of trust in relation to failures to acknowledge and appropriately support the crucial roles women often play, but then the very institution purportedly intended to protect them, will often fuck them over a second time too — because judges and lawyers do not have the necessary insights needed to protect them.

And then will gaslight them for good measure, when they complain about their treatment.

Denied is any gendered element related to their treatment. To acknowledge such would require legal professionals to be trained and educated on the statistics and lived realities of women.

Legal professionals are literally trained out of respect for “lived experiences” with the notion that such “subjectivity” is somehow detrimental to understanding the situations that come before them.

As if complicated psychological cases (as all cases that come before family court are) can be reduced to a mathematical A + B = C equation.

Screening for psychological fitness and self-awareness around how societies shape lawyers and judges own perceptions and how they need to mitigate against erroneous assumptions in their legal practice is needed, but would seem quite impossible in light of the indoctrination just mentioned.

Speaking as a former legal professional, I know my former colleagues, having been indoctrinated into these myths of “impartiality” and “objectivity”, would be quite unlikely to be able to reflect long enough on their own prejudices and bias without become horribly defensive first.

Reflection = vulnerability you see. Lawyers are “tough” don’t you know.

Never show your weakness! At least that’s what I was taught. Or I should perhaps say “indoctrinated” to believe.

Part of the problem may be that most of our judges and those with authority in the profession are still from the Boomer generation too.

There is a significant generational divide in attitudes and understandings in the wider population. One hopes that under the surface there may be similar within the legal profession too.

I say hope, because the hope is that a new generation of lawyers may offer something more progressive over the longer run.

The joke amongst those in the know is that the legal profession is always a couple of decades behind the general populace with respect to more progressive understandings though.

In places like the US, with political judicial appointment processes heightening presently, perhaps more than they ever have, the worry is in fact that such institutions are actually regressing now.

The discourse surrounding these issues must be challenged though — the accepted norms questioned.

In doing so, the hope is that we will one day dismantle the structures that perpetuate the impoverishment and oppression they were meant to prevent.

This is actually Part I of a seven part series I am writing on these issues.

Look out for the following chapters if you’re interested in further discussion on these topics (links to be added as they’re available):

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