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Editors --- "'Sit down Girlie': Legal issues from a feminist perspective" [2002] AltLawJl 87; (2002) 27(5) Alternative Law Journal 244


In the fantasy world of sleep­ deprivation, Girlie has started to hear things. Somewhat embarrassingly, the other day she actually thought that her Northern European friend had claimed that most women in Scandinavia were entitled to two years maternity leave, 12 months of it paid.

Girlie imagined that this friend had spoken of societies where parenting was recognised as intrinsically valuable-snow peaked realms, full of edelweiss and chocolate, where the sun and the moon shone alternately for six months and made everyone slightly touched in the head.

In these magic domains, parents were not forced back into the paid workforce by economic imperatives before they or their children were ready. Unless they chose to return to paid employment for other reasons, breastfeeding mothers were not found expressing furtively in a cupboard, guilty about the additional time away from hours already curtailed. Families who relied on two incomes did not postpone having children purely for financial reasons, and parents were not compelled to return to their posts on no sleep in order to pay the bills.

Girlie and her imaginary Nordic friend danced happily to ABBA and laughed at the prospect of such a system existing-a society ready to recognise that parenting was work in and of itself, rather than something to be fitted in around paid employment; and that a community's workforce was not the only way in which its members could make valuable contributions.

Imagine Girlie's surprise when she heard the ACTU put forward an anarchical proposal not only that everyone should have access to 14 weeks paid maternity leave, but that all workforces should allow three years unpaid parental leave as well! Having obviously received a touch of the midnight sun, the ACTU thinks that we should reconstruct society to prioritise family responsibilities, rather than just accommodate them! Not to be outdone, our very own Che Guevara of gender, Pru Goward suggested that failure to provide decent maternity leave provisions increased the rate of breast cancer, given the recognised capacity of breastfeeding to reduce the risk!

This was clearly the last straw for the boys of the establishment. Renaissance figures though they are, they could not quite come at the suggestion that bearing and raising the next generation, or equality of access to the workforce, were quite up there with the small business vote or the bottom line. Tony Abbott and colleagues were appalled, and crusty old radicals like Piers Akerman accused the Sex Discrimination Commissioner of 'hysteria'.

Of course, the PM is nothing if not flexible, and has agreed to consider mechanisms for paid maternity leave. Just like other zany governments around the world, his mob are gravely concerned about the declining fertility rate. However, their motivation seems to be to ensure that there is another generation to support them in their dotage - the fiscal concern of an economy that can't sustain itself, rather than an inherent recognition of the value of parenting, or of the right of women to genuine choice.

It seems that some Australians still have a long way to go before they recognise that women's full participation in the workforce means systemic change, or that women's involvement in the workforce should not be a matter of 'either/or'.

A recent case in the Federal Court demonstrated 'that employers were still not guaranteeing a return to a comparable position after maternity leave, despite having a comprehensive 'family leave' policy. More insidiously, the recent decision of a majority of the High Court involving a woman hoping to return to her country of origin with her child upon divorce, sends an alarming message.

On appeal from the Family Court, a mother appealed against the trial judge's finding that the fact that she would 'elect' to stay in Australia if she wasn't allowed to take her child overseas was a valid 'alternative proposal'. The woman had applied to return to India, as she had no family, social or community connections and no job opportunities in Australia.

The trial judge, and ultimately a majority of the High Court, thought that she should nevertheless stay in Australia so that her daughter could be near the girl's father. However, neither the trial judge nor the majority of the High Court considered whether the father could move. This was despite the fact that he was also originally from India, and had a range of job opportunities there. Girlie wonders whether the decision would have been different if the father was the party wishing to return to India. Would his desire to pursue career opportunities have been given greater weight than the mother's? Kirby and Gaudron JJ raised similar queries in dissent, making Girlie wonder where they had been spending their holidays.

It seems that, in some fairytale lands, a woman's right to parent and to have a career is valued and supported by the law and by the government. In others, the pace of reform is sluggish.

Must be all that warm weather.

Dee Leerium

Dee is a Feminist Lawyer.

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