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Graycar, Reg --- "Law Reform by Frozen Chook: Family Law Reform for the New Millenium?" [2000] MelbULawRw 29; (2000) 24(3) Melbourne University Law Review 737

Law Reform by Frozen Chook: Family Law Reform for the New Millenium?[*]


[This article explores some of the barriers to effective policy development in areas of law that impact on family relationships. First, the notion of ‘family law’ has been narrowly understood as involving only the law affecting marriage and divorce, whereas the law impacts on familial relationships in a much broader variety of ways. Further, powerful gendered discourses constrain how family law policies (in the limited ‘marriage and divorce’ sense) are debated and progressed. In particular, the anecdotes told by those disgruntled with ‘the system’ have tended to have far more influence than the empirical evidence gathered by researchers. The article concludes by suggesting that the ways in which law reform on other family issues is developing, such as the recognition of same-sex and other interdependent relationships, may give rise to some cautious optimism that other ways of discussing these issues may be possible.]


The purpose of this discussion is to show how limited is our sense of the contours of what we loosely call ‘family law’ and how that limited framework affects (and impedes) how we talk about family law, what we teach about family law, what the community understands it to be and what happens when we set about undertaking law ‘reform’ in this field.

I will briefly address some of the structural and legislative limits of our family law discourses (most particularly, in Australia, the Australian Constitution), then look at examples of laws that, while they significantly impact on family relationships, have traditionally not been considered to fall within the field of ‘family law’. I will refer to recent law reforms in New South Wales that extend a number of legal rights to lesbians, gay men and others in close interpersonal relationships, as examples of ways in which the scope of family law is being changed. But my main concern is with the prevalence of ill-informed myths and distorted ‘data’ about family law and the role this plays in impeding effective debate, discussion and, ultimately, law reform in this country. I will draw on some recurring stories (perhaps they should better be described as ‘fairy tales’ or ‘myths and legends’) and relate these to several ‘law reforms’ or proposals that I have been involved with over the past few years. My purpose in telling these stories, which are regularly seen and heard in national media, is to ponder why they have so much more resonance with politicians than does research information or official government statistical data (which very frequently contradicts these stories). I suggest that this is at least in part attributable to the gendered nature of the discourses that characterise federal or heterosexual family law.

I shall start by asking ‘What is family law?’ then explain how I will be using that term in this discussion.


When we put the words ‘family’ and ‘law’ together, we tend to think of that area of law we call ‘family law’. But of course, family law is a very small part of the legal framework that structures important aspects of our lives: family law might more accurately be described as the law that governs the breakdown of marital and (only in very limited cases) marriage-like relationships.

The Constitution plays a key role in this. Drawn up over a century ago by the ‘founding fathers’,[1] the Constitution reflects their view that most issues that affect families are not matters of national importance. For the purpose of delineating the Federal Parliament’s power to legislate, ‘family law’ was limited to marriage, divorce and related children’s issues,[2] and this continues to be the scope of federal family law-making power in the year 2000.[3] The Constitution’s vision of the family is not only limited by subject matter: its conception of family was (and remains) anglocentric, nuclear, male-focused and heteronormative. To keep this clear, in the remainder of my discussion I shall refer to federal family law as ‘marriage and divorce law’.

Aside from excluding large proportions of the Australian community, there is another fairly obvious gap: generally speaking, family law is not concerned with the regulation of subsisting domestic arrangements.[4] Rather, it is concerned much more with the breakdown of those arrangements and the consequences of that.

So, in speaking of ‘family law’, we are often talking only about marriage, divorce and its consequences. There are two obvious problems with this: first, it fails to take into account the myriad of laws that regulate many aspects of our family lives and relationships and, secondly, not everyone is married (or a child of a marriage).

In a recent discussion Professor Carol Smart illustrated the second point very effectively by noting that in the United Kingdom (and the same is true in Australia and, I imagine, numerous other countries), on most official forms, we are asked to nominate single, married, divorced or separated, or widowed.[5]

All of these categories, save single, automatically presume heterosexuality. All assume that domestic arrangements gravitate around a sexual relationship rather than, for example, care or companionship. ... [T]he central organising principle of these categories is marriage and only marriage. Thus people are assumed inevitably to be in a state of pre-marriage, marriage, or post-marriage.[6]

One need only look briefly at a few examples to see how complex and widespread is the legal regulation of family relationships.[7] Our tax system, while notionally based on the individual as the unit of taxation, has many aspects that are based on family relationships,[8] while the social security system is premised on ideas about who should support whom.[9] Our family relationships are also deeply implicated in our industrial or labour laws, for example, through the determination of the extent to which childbirth, child rearing and caring for family members are recognised and supported as more than private responsibilities.[10]

In a recent discussion paper the Law Commission of Canada noted that a survey undertaken for the Commission revealed that, leaving aside tax laws, terms dealing with close personal relationships featured in one way or another in some 1800 statutory sections of federal Canadian law.[11] The Commission commented that:

[I]n every case, the law identifies a close personal relationship by using concepts that are associated with the idea of family, and more particularly with the idea of marriage. Second, the policy objective behind the use of words relating to family and marriage is different in each case.[12]

As the Commission noted, recent trends toward recognising the relationships have added them to marriage by describing them as ‘marriage-like’ without reconsidering the underlying policies, that is, by treating marriage as the unquestioned benchmark.[13] But the analogy approach has reached its use-by date. My argument is that it is now time to rethink why certain legal consequences attach to certain forms of relationships, but not to others.

This attention to the ways in which family relationships are mediated and constructed through such diverse areas of law as evidence, tax, and (in New South Wales) judges’ pensions,[14] to give a few disparate examples, is not unprecedented. In their 1972 Australian family law text Henry Finlay and Alastair Bissett-Johnson included a chapter on the legal consequences of marriage, dealing with such issues as interspousal immunity, contractual capacity, competence and compellability in evidence law.[15] Given the effect marriage had on women’s legal capacity (as Blackstone told us, ‘on marriage husband and wife are one person in law’ and the husband is that one),[16] it is not surprising that these aspects of the legal consequences of marriage were seen as a key element of family law. An analogous development has been the way that the removal of many of the restrictions has been used in helping to obscure what the Law Commission of Canada has described as the ‘heritage of inequality’ that underpins family law: ‘[C]lose personal relationships between men and women have been marked by an unequal distribution of power. ... In modernizing policies and programmes, this heritage of inequality cannot be ignored.’[17]

Yet one of the paradoxes of marriage and divorce law is that this inequality is rarely, if ever, expressly mentioned. This absence helps to maintain the myth of formal equality that underpins family law discourses and debates.[18]

Critical and feminist family law scholars such as Katherine O’Donovan,[19] Michael Freeman,[20] Carol Smart,[21] Frances Olsen[22] and Martha Fineman[23] have raised some of these concerns, and in particular have highlighted how law regulates and constructs family relationships and how ‘privacy discourses’ have masked abuses of power, and literally, physical abuse, within the family for years. Yet marriage and divorce law has generally remained a closed system: while the better books (and law school courses) now raise issues of violence in family relationships as part of ‘family law’, it is still uncommon to see a family law course that deals broadly with legal modes of regulating subsisting familial relationships rather than merely with the law of marriage, divorce and what are often called ‘ancillary’ matters (that is, property and children).


But something very dramatic has been happening to family law. Lesbian and gay legal scholars have challenged their exclusion. The slogan ‘we are family’ has been heard not only on the streets and in the marches, but also in law journals and in the courts. The lesbian and gay law reform program has highlighted the need to address the multiple forms of regulation that constitute family law; that is, the constellation of laws and practices that construct, privilege or devalue, impact upon, recognise, or ignore, the variety of relationships in which people live their lives. In 1999 the NSW Parliament passed a law that amended some 20 pieces of legislation so that they apply to lesbians and gay men in cohabiting relationships, and a small number of acts were changed so that they now apply to people living in ‘domestic relationships’, that is, interdependent, non-couple, caring relationships.[24] The laws in the first category include those dealing with property, death or injury, decision-making during incapacity and after death, and a number of miscellaneous statutes, such as the Bail Act 1978 (NSW) (which looks at who is affected by bail decisions) and the Legal Aid Commission Act 1979 (NSW) (which determines whose income and assets are taken into account under the means test for legal aid).[25] Similarly, laws passed in other jurisdictions traverse a wide range of areas of law. For example, in Ontario the law implementing the 1999 decision (grudgingly, if its title is anything to go by) of the Supreme Court of Canada in M v H[26] amended some 67 laws[27] and the federal Canadian legislation, which followed in 2000, amended 68 laws.[28] The statute that gave citizens of the United States State of Vermont the right to enter into ‘civil unions’, passed in April 2000, extended every State law that currently applies to married couples to those in civil unions.[29]


The major initiative for the 1999 NSW law reforms came from the community based Gay and Lesbian Rights Lobby. In 1993 that group published a draft discussion paper, called ‘The Bride Wore Pink’, which formed the basis of consultation in the gay and lesbian communities.[30]

‘The Bride Wore Pink’ was a pioneering Australian law reform document. It raised questions about broad issues such as why certain rights and obligations attach to or flow from marriage (and, in some cases, other relationships). The overarching principle guiding ‘The Bride Wore Pink’ was that the basis for relationship recognition should be purposive.[31] Simply put, the kinds of relationships that laws should regulate ought to depend upon the purpose of the law in question. As these purposes vary, so should the type of recognition and obligation. For example, some laws that recognise relationships do so because of financial dependence or interdependence between the partners, while others are more concerned with emotional connection.[32] Live-in sexual relationships are not the only ones to give rise to financial or emotional ties, but they are the relationships most likely to do so. It was therefore proposed that live-in partner relationship recognition should be broad-based and presumptive; that is, it should apply unless excluded, rather than require people to opt in.[33] Other forms of close relationships may give rise to emotional or financial ties, but those situations may not be so predictable, nor as widespread and, therefore, statutory coverage might be more limited.

After a series of consultations the Gay and Lesbian Rights Lobby recommended in 1994, in a revised edition, that legal recognition in NSW should simultaneously and distinctly be accorded to same-sex couple relationships, as well as to other forms of interdependent relationships, and that the NSW Law Reform Commission (‘NSWLRC’) should be asked to consider the broader questions over a longer time frame.[34] This, then, is basically what has happened and this is the position in 2000.[35]

The outcome, then, is that NSW law now recognises same-sex couples in the same way as married or heterosexual non-married couples for a number of legal purposes. Additionally, others who are not couples but are in defined ‘domestic relationships’ have been granted a more limited range of rights and obligations under some (but not as many) NSW laws.[36] To this extent, NSW joins only with the Australian Capital Territory in moving beyond the couple in a sexual relationship as the unit upon which State laws and policies operate.[37] While this recognition of close personal relationships is very limited (more so than in the ACT, where the domestic partners need not live together), it is an extremely significant step in moving away from the sexual relationship as the key determinant of ‘family’. Some academic commentators have recommended various forms of moving beyond the ‘who’s sleeping with whom’ approach to family[38] but the NSW law, while limited, is still one of the first to be implemented. It is therefore an important step in the process of rethinking some of the underlying questions about the law’s response to the variety of relationships in a way that is very timely, not only for the work of the NSW Law Reform Commission, but for the broader project of rethinking the contours of ‘family law’.

We might think, then, that family law (not just as the law of marriage and divorce) is now the site of a much richer, more nuanced discourse, but as will become apparent, this is not the case in the federal, heterosexual marriage and divorce law arena. Some stories will illustrate this.


official statistics on family violence ... used by the Family Court, academia, law societies and other professional bodies, are incorrect. He maintains, for example, that men and women are equally violent. ‘My ex-wife, for example, once chucked a frozen chook at me’ he says by way of illustration.[39]
The group Lone Fathers believes such killings [domestic homicides] are symptomatic of the despair many divorced fathers feel at the loss of contact with their children, and accuses the Family Court of discriminating against men, with custody awarded to mothers in 83% of contested cases.[41]


A The Family Law Reform Act 1995 (Cth)

In the past few years I have been either directly involved with or have observed a number of different sets of ‘family law reform’ initiatives or proposals and I will refer briefly to each of these. The first, and the one with which I have had most involvement, is the passage of the Family Law Reform Act 1995 (Cth), which made significant changes to Part VII of the Family Law Act 1975 (Cth), the part that deals with children’s issues.[44]

A major stated aim of the reforms was to create a new normative standard of shared parenting for separated couples.[45] Apparently, it was believed that this might change the long-standing practice of one parent assuming day-to-day responsibility for the children after parents separate.[46] While shared parental responsibility is a laudable aim, what is most significant about the Act, self-consciously labelled a ‘Reform’ Act, is that, unlike most exercises in law reform, it did not address any particular problem or respond to some identified ‘mischief’ that apparently flowed from the practice of children being raised predominantly by one parent.[47]

So, if the Part VII reforms were not a legislative response to an identified problem or to research data about what is in the best interests of children,[48] where did they come from? I suggest that they were a response to the anecdotes constantly recounted to politicians; the stories of aggrieved non-custodial fathers who told (and continue to tell) bitter tales of gender bias against them by the legal system, and particularly by the Family Court. The fathers’ rights groups have been remarkably successful in capturing the attention of the politicians. This motivation for the reforms is obvious from the Government’s Second Reading speech,[49] and from the contemporaneous Parliamentary Debates where there are numerous references to the hope that a shared parenting law would alleviate the distress of non-custodial parents, the majority of whom are fathers.[50] The fathers’ groups persistently claim that the Court is ‘biased’ against them.[51] But their claims had (and have) no empirical support: the literature and the available studies show that the Family Court makes orders (in contested cases) in favour of fathers at twice the rate of those made by consent.[52] The fathers’ anecdotes that so captured the attention of the politicians (and I should emphasise that this is a non-party political issue: the legislation was introduced by the previous Labor Government) invoked the discourses of ‘victimhood’ and ‘formal equality’[53] in much the same way as happened in the lead up to the Children Act 1989 reforms in the United Kingdom.[54]

This is not the place in which to outline the findings of the research on the implementation of the Family Law Reform Act 1995 (Cth) in any detail[55] but it is fair to say that when measured against some of the stated aims, these reforms have been unsuccessful in bringing about a change in parenting practices. Moreover, there have been some very serious outcomes that endanger children and their carers.[56] Not least, contrary to the stated aim of having parents agree about parenting issues, there has been a considerable increase in litigation[57] and, in particular, in the area of contravention applications, an area to which I will return shortly.

B ‘Equal’ Shares: The Matrimonial Property ‘Debate’

A second example of a ‘family law reform’ initiative is the reform of matrimonial property laws.[58] In 1999 the federal Attorney-General’s Department released a discussion paper that relied extensively upon discourses of formal equality to make recommendations for reform that were (judging from the submissions received in response) almost universally considered to be disadvantageous to women and the children in their care.[59] My interest for these purposes is not with the detail of the proposals,[60] but with how the underlying rhetoric in the paper drew upon some of the myths and stereotypes with which I’m concerned. The paper asserted, for example, that the current system was subject to claims of ‘bias’ and that there had been considerable social change in the past 20 years (such as the increased proportion of women in paid work).[61] But let’s not let the facts get in the way of a good story — what was not mentioned was the ever-increasing wage gap between women and men,[62] and the casual and part-time nature of much of the paid work that women do.[63]

The results of the Australian Divorce Transitions Project published in 2000, which revisited the mid-1980s work of the Australian Institute of Family Studies on the economic consequences of marriage breakdown,[64] show that women and the children in their care are still carrying the economic burden of marriage breakdown.[65]

C The Family Law Amendment Bill 1999 (Cth)

In October 1999, at the same time as the Government was conceding defeat in the face of enormous opposition to the matrimonial property proposals,[66] the Family Law Amendment Bill 1999 (Cth) was introduced. As enacted, this legislation[67] makes several changes to the Family Law Act 1975 (Cth), two of which are particularly relevant for these purposes. First, the legislation establishes a punitive regime for dealing with breaches of contact orders/agreements.[68] Secondly, it provides a statutory basis for the recognition of private financial agreements.[69] In relation to contact enforcement, the dominant story underpinning the claimed need for tighter enforcement is the implacably hostile mother–caregiver[70] who for no reason chooses to deny the father his rightful contact with his child (she’s the one who also fabricates allegations of domestic violence or abuse for strategic purposes). Yet this woman has been clearly shown by the research to be a mythical creature.[71] In research which I conducted with Helen Rhoades and Margaret Harrison, one of our most striking findings when we interviewed parents was that most women who had experienced violence in their relationships still wanted their children to have some contact with their other parent, but what they sought (and often did not get) was an arrangement that ensured the safety of the children and themselves.[72] Our findings were that in the current climate of declining legal aid, women are being forced to make ill-advised agreements that prove unworkable and, not surprisingly, many of these break down. Instead of trying to make a more realistic arrangement, the contact parent is frequently bringing enforcement proceedings, well over half of which are considered by the Court to be unfounded.[73] And, as for the private agreements, there is no evidence of any widespread community support for the enforceability of prenuptial agreements.[74]

D The Child Support Scheme[75]

In May 2000 the Government announced plans in the Budget to change the child support scheme again,[76] in particular, to assist those men with second families.[77] It might be thought that this group is particularly financially disadvantaged. In fact, the Divorce Transitions data shows that the least disadvantaged of all groups post-divorce are men who have repartnered, including those living with children.[78] So, in an attempt to help these men, the disposable income of women and the children in their care will be reduced for the second time in two years.

E Summary

To sum up, in a number of different contexts changes have either been made or proposed to ‘marriage and divorce law’ that respond to what are either purely anecdotal stories of problems with the law or rhetorical resort to notions like formal equality to suggest that previously recognised gendered disparities in outcomes for women and men have simply disappeared through resort to the rhetoric of ‘social change’. In the remainder of this discussion I question why this pattern of what I call ‘law reform by frozen chook’ persists at the federal level when in NSW it could be suggested that the seeds are being sown for a much more complex and realistic understanding of ‘family law’.


While the examples of federal heterosexual marriage and divorce law reform have been largely based on loud rhetorical victim campaigns by aggrieved men, the NSW changes happened quickly and relatively quietly: there was almost no publicity and the Parliamentary Debates, while containing a few gems,[79] were relatively low key.[80] Only three members of the NSW Legislative Council voted against them and the opposition (Liberal Party) chose not to oppose the changes.[81]

However, this does not mean that there is no opposition to lesbian and gay law reform nor that we have overcome homophobia in Australia. In the Federal sphere, consider the recent Senate report on superannuation,[82] where some of the Government senators[83] chose to rely extensively on the (small number of) submissions from groups such as the Festival of Light to reject a proposal to extend partner benefits to those in same-sex relationships.[84] Another particularly disturbing example is the response to the July 2000 Federal Court decision involving discrimination in the availability of fertility services.[85] That Court decided, in response to a challenge brought by a single heterosexual woman, that Victorian legislation limiting access to fertility services to married women and those in de facto heterosexual relationships was inconsistent with the Sex Discrimination Act 1984 (Cth) and was consequently invalid by virtue of s 109 of the Constitution.[86] Within days, Prime Minister John Howard announced the Government’s intention to amend the Sex Discrimination Act 1984 (Cth) with a view to protecting the ‘rights’ of State governments to discriminate on the basis of marital status or sexual preference when determining who might have access to fertility services.[87] His stated concern, that all children have a right to a mother and a father, was widely perceived as an attack on lesbians and single heterosexual women who choose to have children and use fertility services as a safe method of doing so.[88] After weeks of public ‘debate’ (much of it as ill informed as the ‘debates’ about the ‘federal marriage and divorce law’ issues discussed above), the Federal Government introduced a bill that would leave it open to States to discriminate, not only against lesbians and single heterosexual women, but also against women living with male partners to whom they are not married.[89]

And, returning to NSW, the amendments made by the Property (Relationships) Legislation Amendment Act 1999 did not apply to adoption, despite a 1997 recommendation by the NSW Law Reform Commission that the barriers on adoption based solely on sexuality should be lifted.[90]

While these examples reveal some clear fissures in the project of recasting aspects of relationships law, there is some room for cautious optimism. That is, the practical, purposive nature of the 1999 NSW changes, the reference to the Law Reform Commission to look further at the issue, and the lack of any substantive secular voice of opposition to them, can be seen as positive developments.

So, my question is, what is it about Australian marriage and divorce law debate that lowers the level of discourse so dramatically, that reduces it to stories of frozen chooks? If we hear these stories with amazement, and wonder how they can have so much impact, the converse is surely: what impact, if any, does research (including empirical research) have? Is this a problem peculiar to family law, or does it affect public policy-making more broadly? We see some aspects of it in the criminal justice context, where the analogy might be the constant law and order rhetoric such as the ill-informed calls for higher sentences and the death penalty as crime deterrents when evidence shows that not to be the case.[91]

Perhaps family law is particularly susceptible to this kind of ill informed policy-making, since most people have a family of one kind or another. Therefore, it is presumed that we are all our own experts and the data and research material is of no more consequence (indeed, is of less consequence) than the stories of aggrieved participants.

I suggest that we will only be able to have a coherent debate about family law-related issues when we move beyond the paradigm of the ‘gender wars’ that characterise marriage and divorce law in this country.[92] Unfortunately, the field of family law has become less a terrain of debate and more a battlefield, with landmines (such as the recent child support proposals) going off in every direction. For every anecdote or story that has swayed a politician, family law and policy researchers could provide not only alternative anecdotes but also research data that contradict that story.[93] Yet, just like the stories of lesbians and single heterosexual women scandalously having children with impunity (as opposed to with men), the stories of frozen chooks influence the politicians. Stories about the women who actually use fertility services, data about the real life poverty of children and the women who care for them, and about the violence that characterises many of the relationships from which they are trying to escape, all remain unheard.[94] How many times do we have to hear the hoary old chestnut, ‘women may once have been disadvantaged, but now the pendulum has swung too far and it is men who are the victims’[95] or, as the Federal Attorney-General is quoted as saying: ‘[f]or a couple of decades we had a focus on women’s issues, and then suddenly the table seemed to be turned and men seemed to be often the victim of ... a family dispute.’[96]

The journalist who described family law disputes as gender wars has, in my view, identified a large part of the problem. It resonates with what the Law Commission of Canada described as the ‘heritage of inequality’[97] — the underlying gendered power imbalance that is so rarely talked about explicitly yet is so central to the way in which laws dealing with relationships between women and men are constructed. There is considerable theoretical research on how the voices of the powerful drown out the voices of the powerless: in the context of divorce law reform, men have the ears of the politicians, the women and children simply do not.[98] And there are all sorts of pragmatic reasons for this. Since it is overwhelmingly women who are raising children after separation and divorce (not because of ‘biased’ courts, but because of a history of gendered patterns of caregiving), they are not as free as men are to spend time lobbying politicians and otherwise engaging in public activities.[99]

The amendments to the Property (Relationships) Act in NSW provoked nothing of this kind. It may be that people didn’t know about the amendments; it may be that the changes to NSW laws were much more purposive and less symbolic, and therefore much less likely to ‘excite’ the passions. But it may also be simply that most members of the heterosexual community do not feel that giving rights to lesbians and gay men takes away rights or (economic) power from them.[100] By contrast, if federal ‘family’ laws were changed to respond to documented phenomena such as the high incidence of violence against women amongst the separating population,[101] and the poverty of women and children after divorce,[102] there would be a perception that power (and money) were being taken away from men.


This is an ideal time to reconsider a whole range of legal rights and obligations that attach to relationships. We have not, until recently, questioned the centrality of the concept of marriage, yet have added on categories such as ‘marriage-like relationships’. The lesbian and gay law reform process (and its limited success in NSW) really heralds the end of a period of adding by analogy without questioning marriage as the benchmark. We have reached a point where it is necessary to rethink the purposes of attaching rights and responsibilities to particular relationships. While it seems to be accepted that we need to do this to be able to include lesbians, gay men and their families more effectively in our communities, let’s not let this opportunity to rethink families and family law pass us by. Only with a more informed debate about the purposes of aspects of legal regulation might we escape the constraints that the gender wars, with their heritage of inequality, have until recently imposed upon our family law discourses.

[*] For the information of the non-Australian reader, ‘chook’ is a colloquial Australian term for ‘chicken’: see below Part V for an explanation of the usage in the context of this article.

[†] LLB (Hons) (Adel), LLM (Harv); Barrister of the Supreme Court of NSW; Professor of Law, the University of Sydney (on leave); Commissioner, NSW Law Reform Commission; member, Family Law Council, 1992–96. This is a revised version of a plenary address to the 10th World Conference of the International Society of Family Law — Family Law: Processes, Practices and Pressures, Brisbane, 10 July 2000. The views expressed are solely those of the author and do not purport to represent the views of the NSW Law Reform Commission. I am indebted to those who read drafts, commented on the paper, or assisted in other ways. Particular thanks are due to Richard Collier, Francesca Di Benedetto, Margaret Harrison, Hayley Katzen, Jenny Lovric, Jenni Millbank, Jenny Morgan, Helen Rhoades, Danny Sandor, Wendy Stokoe, Julie Stubbs and Amy Veitch.

[1] For a discussion of how the place of family law in the Constitution was perceived by the ‘founding fathers’ (who, as their name indicates, were all (Anglo) men), see Michael Coper, Encounters with the Australian Constitution (1987) 198–9. Helen Irving has argued that if women had been involved in drafting the Constitution, they may have had different priorities in relation to what were matters of national importance: see Helen Irving, ‘A Gendered Constitution? Women, Federation and Heads of Power’ (1994) 24 University of Western Australia Law Review 186, 192–4.

[2] See Constitution s 51(xxi) and (xxii). Section 51(xxi) provides the Commonwealth with power to legislate with respect to marriage, while s 51(xxii) refers to ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’.

[3] Chief Justice Alastair Nicholson, ‘Family Law in Australia: Bargaining in the Shadow of the Constitution(2000) 55 Family Matters 22; Chief Justice Alastair Nicholson and Margaret Harrison, ‘Experiences of the Family Court of Australia: The First 25 Years’ [2000] MelbULawRw 30; (2000) 24 Melbourne University Law Review 756. The only real change is that the power to make laws with respect to ex-nuptial children was referred by the States (all except WA) to the Commonwealth, between 1986 and 1990, under s 51(xxxvii) of the Constitution, so pt VII of the Family Law Act 1975 (Cth) (the part dealing with children) now applies to all children (other than in WA) irrespective of the marital status of their parents: Commonwealth Powers (Family Law — Children) Act 1986 (NSW); Commonwealth Powers (Family Law — Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas); Commonwealth Powers (Family Law — Children) Act 1986 (Vic).

[4] There are some rare exceptions: see, eg, the decision in Eliades v Eliades [1980] FamCA 7; (1981) FLC 91-022, where the Family Court made an order for spouse maintenance during the course of a marriage. But compare the comment of Mason CJ, Deane and Toohey JJ in R v L (the ‘rape in marriage’ case):

Whatever the scope of the power of the Parliament to make laws with respect to marriage, it is apparent that the Commonwealth Act [the Family Law Act 1975 (Cth)] does not attempt comprehensively to regulate the rights and obligations of the parties to a marriage and in particular says nothing to express or imply an obligation to consent to sexual intercourse by a party to a marriage.

[1991] HCA 48; (1991) 174 CLR 379, 386 (citations omitted).

[5] Carol Smart, ‘Stories of Family Life: Cohabitation, Marriage and Social Change’ (2000) 17 Canadian Journal of Family Law 20, 23.

[6] Ibid.

[7] There has also been considerable attention to the broader question of what constitutes a ‘family’ in law: see, eg, Martha Minow, ‘Redefining Families: Who’s In and Who’s Out?’ (1991) 62 University of Colorado Law Review 269 and ‘All in the Family & in All Families: Membership, Loving, and Owing’ (1993) 95 West Virginia Law Review 275. In 1999 the House of Lords had to decide whether a same-sex partner was a member of the other partner’s family for the purpose of the Rent Act 1977 (UK) c 42: Fitzpatrick v Sterling Housing Association Ltd [1999] UKHL 42; [1999] 4 All ER 705; see further below n 29.

[8] See Miranda Stewart, ‘Domesticating Tax Reform: The Family in Australian Tax and Transfer Law’ [1999] SydLawRw 18; (1999) 21 Sydney Law Review 453; Patricia Apps, ‘Tax Reform, Ideology and Gender’ [1999] SydLawRw 17; (1999) 21 Sydney Law Review 437; Claire Young, ‘Taxing Times for Women: Feminism Confronts Tax Policy’ [1999] SydLawRw 19; (1999) 21 Sydney Law Review 487.

[9] See Bettina Cass, ‘Gender in Australia’s Restructuring Labour Market and Welfare State’ in Anne Edwards and Susan Magarey (eds), Women in a Restructuring Australia: Work and Welfare (1995) 38 and Lois Bryson, ‘Two Welfare States: One for Women, One for Men’ in Anne Edwards and Susan Magarey (eds), Women in a Restructuring Australia: Work and Welfare (1995) 60.

[10] Therese Macdermott, ‘Who’s Rocking the Cradle?’ (1996) 21 Alternative Law Journal 207. In an analogous discussion of women’s caring responsibilities in the context of changes to parenting laws brought about by the Children Act 1989 (UK) c 41, Carol Smart has described how, while women care for their children, men often care about their children. She points out the consequences this has for the rhetoric that often accompanies disputes about responsibility for children after divorce and separation: see Carol Smart, ‘Losing the Struggle for Another Voice: The Case of Family Law’ (1995) 18 Dalhousie Law Journal 173.

[11] Law Commission of Canada, Recognizing and Supporting Close Personal Relationships between Adults, Discussion Paper (2000) 8.

[12] Ibid 8–9.

[13] A clear analogy is the way in which formal equality discourses treat men as the benchmark — women are either the same as men or different from men, but the standard or measure remains unquestioned: see Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) especially ch 2 ‘Difference and Dominance: On Sex Discrimination’.

[14] The Judges’ Pensions Act 1953 (NSW) was one of those Acts amended by the Property (Relationships) Legislation Amendment Act 1999 (NSW) discussed at below nn 2425 and accompanying text.

[15] H A Finlay and A Bissett-Johnson, Family Law in Australia (1972) ch 5.

[16] Sir William Blackstone, Commentaries on the Laws of England (first published 1765–69, 21st ed, 1844) vol 1, 442. As Blackstone put it, ‘the very being of legal existence of the woman is suspended during the marriage’: ibid. For a discussion of the common law and married women, see Lee Holcombe, Wives and Property: Reform of the Married Women’s Property Law Act in Nineteenth-Century England (1983) 18.

[17] Law Commission of Canada, above n 11, 14.

[18] I am indebted to Professor Roderick MacDonald for this insight.

[19] Katherine O’Donovan, Sexual Divisions in Law (1985).

[20] M D A Freeman, ‘Towards a Critical Theory of Family Law’ (1985) 38 Current Legal Problems 153.

[21] For an early example, see Carol Smart, ‘Marriage, Divorce, and Women’s Economic Dependency: A Discussion of the Politics of Private Maintenance’ in Michael Freeman (ed), The State, the Law, and the Family: Critical Perspectives (1984) 9.

[22] Frances Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harvard Law Review 1497; Frances Olsen, ‘The Myth of State Intervention in the Family’ (1985) 18 University of Michigan Journal of Law Reform 835.

[23] Martha Fineman, ‘What Place for Family Privacy?’ (1999) 67 George Washington Law Review 1207.

[24] Property (Relationships) Legislation Amendment Act 1999 (NSW). Six laws were amended to apply to ‘domestic relationships’: Bail Act 1978 (NSW); Coroners Act 1980 (NSW); De Facto Relationships Act 1984 (NSW); District Court Act 1973 (NSW); Duties Act 1997 (NSW); Family Provision Act 1982 (NSW).

[25] A full list of those acts amended can be found in Property (Relationships) Legislation Amendment Act 1999 (NSW) schh 1, 2. See also the appendix to Reg Graycar and Jenni Millbank, ‘The Bride Wore Pink ... To the Property (Relationships) Legislation Amendment Act 1999: Relationships Law Reform in New South Wales’ (2000) 17 Canadian Journal of Family Law 227,


[26] [1999] 2 SCR 3; 171 DLR (4th) 577. In that case the Supreme Court of Canada (Lamer CJ, L’Heureux-Dubé, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ, Gonthier dissenting) held that s 29 of Ontario’s Family Law Act, RSO 1990, c F.3 violated s 15(1) of the Canadian Charter of Rights and Freedoms, pt I of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11, because the definition of spouse included unmarried opposite sex couples living in ‘conjugal relationships’ but not same-sex couples in such relationships. Significantly, the Court directed the Province of Ontario to ensure that its legislation complied with the Charter, and gave the province six months to do so, setting a deadline of 20 November 1999.

[27] Amendments Because of the Supreme Court of Canada Decision in M v H Act, 1999, SC 1999, c 6, (Family Law Act amendments in force 20 November 1999; fully in force 1 March 2000).

[28] Modernization of Benefits and Obligations Act, SC 2000, c 12.

[29] An Act Relating to Civil Unions, Pub L No 91, 2000 Vt Laws (2000) (in force 1 July 2000). While there has been no comparable legislative change in England, the House of Lords decided in late 1999 that a same-sex partner was a member of the other partner’s family for the purpose of the Rent Act 1977 (UK) c 42: Fitzpatrick v Sterling Housing Association Ltd [1999] UKHL 42; [1999] 4 All ER 705 (Lords Slynn, Nicholls and Clyde, Lords Hutton and Hobhouse dissenting).

[30] The paper is reproduced in (1993) 3 Australian Gay and Lesbian Law Journal 67.

[31] This is discussed in more detail in Graycar and Millbank, ‘The Bride Wore Pink’, above n 25, 254–61.

[32] For example, the Anatomy Act 1977 (NSW), Human Tissue Act 1983 (NSW) and Coroners Act 1980 (NSW) are about respecting a partner’s wishes regarding a deceased person. The Guardianship Act 1987 (NSW) s 33A assumes that a partner in a ‘close and continuing’ relationship is the one best placed to know the incapacitated person’s wishes.

[33] For a more detailed discussion of this, see Graycar and Millbank, ‘The Bride Wore Pink’, above n 25, 254–61.

[34] Lesbian and Gay Legal Rights Service, The Bride Wore Pink — Legal Recognition of Our Relationships: A Discussion Paper (2nd ed, 1994) <

The_Bride_Wore_Pink.htm> at 31 December 2000 (copy on file with author). All websites cited in this article are correct as at 31 December 2000. Copies of all Internet sources are on file with the author.

[35] The NSWLRC was asked by the Attorney-General to undertake a review of the Property Relationships Act 1984 (NSW) on 6 September 1999. The terms of reference, a preliminary consultation paper and papers from a seminar held by the Commission in July 1999 are all available from the Commission’s web page: NSWLRC, Digest of Law Reform Commission References: Reference 101 — Relationships and the Law (2000) <

.au/lrc.nsf/pages/digest.101>; NSWLRC, Relationships and the Law: Review of the Property (Relationships) Act 1984, Preliminary Paper (2000) <

pages/paperproperty>; Jeff Shaw QC, ‘Opening Address’ (Address presented at the Discussion Forum on Relationships and the Law, Sydney, 7 July 2000) <

lrc.nsf/pages/seminar01.03>; Justice Claire L’Heureux-Dubé, ‘Relationship Recognition: The Search for Equality’ (Paper presented at the Discussion Forum on Relationships and the Law, Sydney, 7 July 2000) <> Hayley Katzen, Seminar Paper (Paper presented at the Discussion Forum on Relationships and the Law, Sydney, 7 July 2000) <> Owen Jessep, ‘Financial Adjustment in Domestic Relationships in NSW: Some Problems of Interpretation’ (Paper presented at the Discussion Forum on Relationships and the Law, Sydney, 7 July 2000) <> .

[36] Details of all the amending legislation are available in an appendix to Graycar and Millbank, ‘The Bride Wore Pink’, above n 25, 279–82.

[37] Domestic Relationships Act 1994 (ACT).

[38] For example, Professor Martha Fineman some years ago advocated a redefinition of ‘family unit’ away from what she called the ‘sexual family’ to the mother-child dyad: Martha Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (1995) ch 9. And Michael Freeman has also drawn on her notion (and critique) of the sexual family to argue that we omit elders from our sense of family, despite resort to notions of ‘community care’ (which is another expression for looking after elders within families): Michael Freeman, ‘Family Values and Family Justice’ (1997) 50 Current Legal Problems 315, 325.

[39] Miriam Cosic, ‘Uncivil War’, The Australian Magazine (Sydney), 21–2 August 1999, 15, 20.

[40] Mike Munro (Interviewer) and Warwick Adderley (Producer), ‘Child Support’, A Current Affair, Channel 9, 11 May 2000.

[41] Sue Williams, ‘A Casualty of Parents at War: A Mother Speaks Out about the Tragedy of Ex-Partner Who Took Her Little Boy’s Life’, The Sun Herald (Sydney), 28 May 2000, 104, 105.

[42] Commonwealth, Department of Family and Community Services, Budget 2000–01 ‘What’s New What’s Different’ (2000) <


[43] Bettina Arndt, ‘The Child Exchange Rate’, Sydney Morning Herald (Sydney), 18 May 2000, 19. (This article was also published in The Age on the same day: Bettina Arndt, ‘Bring Home Benefits for Distant Dads’, The Age (Melbourne), 18 May 2000, 15.) The inference is that the Family Court allows mothers to move without reason to do so; the reality, of course, is quite different. About half of all custodial parents who seek to relocate with their children are prevented by the court from doing so: see Helen Rhoades, Reg Graycar and Margaret Harrison, The Family Law Reform Act 1995: The First Three Years (2000) ch 5.

[44] For an interim report of an Australian Research Council funded research study of the impact of these changes, see Helen Rhoades, Reg Graycar and Margaret Harrison, The Family Law Reform Act 1995: Can Changing Legislation Change Legal Culture, Legal Practice and Community Expectations?, Interim Report (1999).

[45] This is not to suggest that there was a clear set of aims, but rather, that a set of normative ideas underpinned the exercise. For a good example of the contemporaneous discourses, see the discussion in the House of Representatives: Commonwealth, Parliamentary Debates, House of Representatives, 8 November 1994, 2842 (Daryl Williams); Commonwealth, Parliamentary Debates, House of Representatives, 21 November 1995, 3303–4 (Peter Duncan). See also Richard Chisholm, ‘Assessing the Impact of the Family Law Reform Act 1995(1996) 10 Australian Journal of Family Law 177; Margaret Harrison and Regina Graycar, ‘The Family Law Reform Act: Metamorphosis or More of the Same?’ (1997) 11 Australian Journal of Family Law 327; Helen Rhoades, ‘Child Law Reforms in Australia — A Shifting Landscape’ (2000) 12 Child and Family Law Quarterly 117.

[46] The law prior to the ‘Reform’ Act had provided that, in the absence of a contrary order, both parties had joint custody and each had guardianship: Family Law Act 1975 (Cth) s 61. Nevertheless, the more common practice was (and remains) for the children to live with their mothers, but have contact with their (non-resident) fathers.

[47] This is discussed in more detail in Helen Rhoades, ‘Posing as Reform: The Case of the Family Law Reform Act(2000) 14 Australian Journal of Family Law 142.

[48] For a review of the research data on the outcomes for children after divorce and separation, see Bryan Rodgers and Jan Pryor, Divorce and Separation: The Outcomes for Children (1998). See generally ibid 150–3.

[49] Commonwealth, Parliamentary Debates, House of Representatives, 8 November 1994, 2757 (Peter Duncan).

[50] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 21 November 1995, 3303–6 (Peter Duncan, Philip Ruddock).

[51] See Miranda Kaye and Julia Tolmie, ‘Fathers’ Rights Groups in Australia and their Engagement with Issues in Family Law’ (1998) 12 Australian Journal of Family Law 19, 35; Miranda Kaye and Julia Tolmie, ‘Discoursing Dads: The Rhetorical Devices of Fathers’ Rights Groups’ [1998] MelbULawRw 7; (1998) 22 Melbourne University Law Review 162; Regina Graycar, ‘Equal Rights versus Fathers’ Rights: The Child Custody Debate in Australia’ in Carol Smart and Selma Sevenhuijsen (eds), Child Custody and the Politics of Gender (1989) 158.

[52] Sophy Bordow, ‘Defended Custody Cases in the Family Court of Australia: Factors Influencing the Outcome’ (1994) 8 Australian Journal of Family Law 252; Frank Horwill and Sophy Bordow, The Outcome of Defended Custody Cases in the Family Court of Australia, Research Report No 4 (Family Court of Australia, 1983); see also Janet Fife-Yeomans, ‘Court to Investigate Custody “Bias”’, The Australian (Sydney), 1 October 1998, 3.

[53] Kaye and Tolmie, ‘Discoursing Dads’, above n 51.

[54] Jeremy Roche, ‘The Children Act 1989: Once a Parent Always a Parent?’ [1991] Journal of Social Welfare and Family Law 345, 346, 355; Richard Collier, Masculinity, Law and the Family (1995) 177; Arthur Baker and Peter Townsend, ‘Post-Divorce Parenting — Rethinking Shared Residence’ (1996) 8 Child and Family Law Quarterly 217; Carol Smart and Bren Neale, Family Fragments? (1999) 31–2.

[55] Preliminary findings can be found in Rhoades, Graycar and Harrison, Interim Report, above n 44; and see the final report: Rhoades, Graycar and Harrison, The First Three Years, above n 43.

[56] The clearest example is the reduction in the number of cases in which contact is denied at interim hearings in the context of allegations of violence, when compared with the constant (and much higher) rate of no-contact orders made at final hearings. This suggests that children are living in situations later held to be unsafe: see Rhoades, Graycar and Harrison, Interim Report, above n 44, 59–61; Rhoades, Graycar and Harrison, The First Three Years, above n 43, 78–81.

[57] Rhoades, Graycar and Harrison, The First Three Years, above n 43, 100–1.

[58] For an extended discussion of some of the broad issues involved, see Regina Graycar, ‘Matrimonial Property Law Reform and Equality for Women: Discourses in Discord?’ (1995) 25 Victoria University of Wellington Law Review 9.

[59] Attorney-General’s Department, Commonwealth, Property and Family Law: Options for Change — A Discussion Paper (1999).

[60] For some commentaries on the discussion paper, see Stephen Bourke, ‘Matrimonial Property Law: A Discussion of the Reform Options’ (Address presented at the NSW Bar Association Public Forum: Property and Family Law, Options for Change, Sydney, 20 May 1999) <> Chief Justice Alastair Nicholson, ‘Proposed Changes to Property Matters under the Family Law Act’ (Address presented at the NSW Bar Association Public Forum: Property and Family Law, Options for Change, Sydney, 20 May 1999) <> Family Court of Australia, Response of the Family Court of Australia to the Discussion Paper ‘Property and Family Law: Options for Change’ (1999) <

propertysub.html>; Reg Graycar, ‘If It Ain’t Broke, Don’t Fix It: Matrimonial Property Law Reform and the Forgotten Majority’, Australian Family Law & Practice — Family Law News, Report No 402 (17 September 1999) 4.

[61] Attorney-General’s Department, Commonwealth, above n 59. See especially ch 4, where it is stated in the concluding paragraph that the ‘evidence supports the claim that, due to increased workforce participation, women are making an economic as well as nurturing contribution to marriage’: 32.

[62] Statistics from the Australian Bureau of Statistics (‘ABS’) reveal that the difference in earnings between low and high income earners in full time jobs has been increasing and that women’s hourly earnings fell as a proportion of men’s hourly earnings between 1994 and 1998: ABS, Australian Social Trends 2000, ABS Catalogue No 4102.0 (2000) 150.

[63] See ABS, ‘Casual Employment’ [1999] (July) Labour Force Australia, ABS Catalogue No 6203.0, 3, 4–5.

[64] Peter McDonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia (1986); Kathleen Funder, Margaret Harrison and Ruth Weston, Settling Down: Pathways of Parents after Divorce (1993).

[65] See Ruth Weston and Bruce Smyth, ‘Financial Living Standards after Divorce’ (2000) 55 Family Matters 10. Their research, based on data from the Australian Divorce Transitions Project (‘ADTP’), found that of post-divorce households (including the categories of alone, sole parent, repartnered and partner with child) the most advantaged group were those living with a partner and no children. In the study this group was almost solely constituted by men (presumably because it was women who were the primary caregivers of the children after separation). For a discussion of the ADTP, see Grania Sheehan, ‘About the Institute’s Australian Divorce Transitions Project’ (2000) 55 Family Matters 6, 6–7. The Australian Institute of Family Studies’ findings are echoed in research recently published in England: see Alison Perry et al, How Parents Cope Financially on Marriage Breakdown, Family Policy Studies Centre (2000). A summary of the findings is available at <

480.htm>. For an insight into the outcomes for the clients of community legal centres, whose lives are very different from those who appear in the published law reports, see Nicola Seaman, Fair Shares? Barriers to Equitable Property Settlements for Women (1999). The reported cases often involve people with significant assets. For some high profile examples, see Ferraro v Ferraro [1992] FamCA 64; (1993) FLC 92-335 and Whiteley v Whiteley (1992) FLC 92-304.

[66] In a speech to the National Press Club on 27 October 1999 federal Attorney-General Daryl Williams said: ‘[T]he Government released a discussion paper earlier this year seeking views on matrimonial property reform. We received a number of submissions and I thank all those who took the time to participate. Neither option in the discussion paper gained significant support.’ He therefore announced the Government’s intention not to proceed, but to gather more comprehensive research and statistical information: Daryl Williams, ‘Shaping Family Law for the Future’ (Speech presented at the National Press Club, Canberra, 27 October 1999) <> .

[67] Family Law Amendment Act 2000 (Cth). The Act came into effect on 27 December 2000.

[68] Family Law Amendment Act 2000 (Cth) sch 1, though note the insertion, immediately prior to enactment, of s 70NG(1A).

[69] The Family Law Act 1975 (Cth) also makes provision for binding arbitrations: ss 19D, 19E.

[70] The term is used by Carol Smart and Bren Neale in ‘Arguments against Virtue — Must Contact Be Enforced?’ [1997] Family Law 332, 332ff. In its report, Child Contact Orders: Enforcement and Penalties (1998), the Family Law Council, while identifying that the problems went wider than those experienced by contact parents, gave particular emphasis to many of these claims. For a commentary on the report, see Julia Tolmie, ‘Child Contact Orders: Enforcement and Penalties — The Final Report of the Family Law Council’ (1998) 12 Australian Journal of Family Law 305.

[71] See Marie Hume, ‘Study of Child Sexual Abuse Allegations within the Family Court of Australia’ in Family Court of Australia, Enhancing Access to Justice — Family Court of Australia Second National Conference Papers (1996); Thea Brown et al, ‘Child Abuse and the Family Court’ (1998) Trends and Issues in Crime and Criminal Justice, Paper No 91, 2–3. See also Miranda Kaye and Julia Tolmie, ‘“Lollies at a Children’s Party” and Other Myths: Violence, Protection Orders and Fathers’ Rights Groups’ (1998) 10 Current Issues in Criminal Justice 52, 55–6.

[72] Rhoades, Graycar and Harrison, The First Three Years, above n 43. Another issue rarely aired is the failure on the part of non-residence parents to exercise contact: this is discussed (briefly) by the Senate Legal and Constitutional Legislation Committee, Provisions of the Family Law Amendment Bill 1999 (1999) [2.18]–[2.19].

[73] Rhoades, Graycar and Harrison, The First Three Years, above n 43. A review of contravention judgments collected in 1999 for this research showed that 95% of the 110 applications received in that period were brought by non-resident parents alleging a failure by the resident parent to make the children available for contact. Sixty-two per cent of these applications were considered to be without merit, 45% were dismissed, and 17% were considered ‘trivial’ or of a ‘minor nature’ resulting in no penalty.

[74] Senate Legal and Constitutional Legislation Committee, above n 72. Only one of the submissions to the Committee gave unqualified support to binding pre-nuptial agreements: see [1.78]. For a detailed discussion of the proposed financial agreements, see Belinda Fehlberg and Bruce Smyth, ‘Pre-Nuptial Agreements for Australia: Why Not?’ (2000) 14 Australian Journal of Family Law 80.

[75] For some background discussions of this scheme, see Margaret Harrison, Patricia Harper and Meredith Edwards, ‘Child Support — Public or Private?’ in Family Law in 84: Hobart, 16–17 November 1984 (1984) vol 2; Cabinet Sub-Committee on Maintenance, Child Support: A Discussion Paper on Child Maintenance, Discussion Paper (1986); Regina Graycar, ‘Family Law and Social Security in Australia: The Child Support Connection’ (1989) 3 Australian Journal of Family Law 70.

[76] For discussion of the changes that were made only one year before, which took effect from July 1999, see Margaret Harrison, ‘Recent Issues and Initiatives’ (1999) 52 Family Matters 61 and Linda Hancock, ‘Reforming the Child Support Agenda?: Who Benefits?’ [1998] (March) Just Policy 20.

[77] Commonwealth, Department of Family and Community Services, above n 42, E5.

[78] Ruth Weston and Bruce Smyth, ‘Financial Living Standards after Divorce’ (2000) 55 Family Matters 10, 15.

[79] One particular gem is the comment by an opposition member of Parliament, responding to the Bill’s focus on ‘property’: ‘If this bill were about sexuality I would not be able to support it. However, as no-one is arguing that this bill is about sexuality, I will not oppose it’: NSW, Parliamentary Debates, Legislative Assembly, 1 June 1999, 739 (Stephen O’Doherty).

[80] The speed with which these amendments happened and aspects of the parliamentary process are discussed by Jenni Millbank and Wayne Morgan, ‘Let Them Eat Cake, and Ice Cream: Wanting Something “More” from the Relationship Recognition Menu’ in Robert Wintemute and Mads Andenæs (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European, and International Law (forthcoming, 2001); Jenni Millbank and Kathy Sant, ‘A Bride in Her Every-Day Clothes: Same Sex Relationship Recognition in NSW’ [2000] SydLawRw 9; (2000) 22 Sydney Law Review 181. See also Graycar and Millbank, ‘The Bride Wore Pink’, above n 25, 248–54.

[81] New South Wales, Minutes of the Proceedings of the Legislative Council, No 5 (26 May 1999) 96.

[82] Senate Select Committee on Superannuation and Financial Services, Report on the Provisions of the Superannuation (Entitlements of Same Sex Couples) Bill 2000 (2000) <


[83] A minority of 3 out of 7 members.

[84] Senate Select Committee on Superannuation and Financial Services, above n 82. Of the 41 submissions received, only 5 opposed the bill. The Committee received many more letters and e-mails in support of the legislation, but these were not treated as submissions: see ch 1 <> .

[85] McBain v Victoria [2000] FCA 1009; (2000) 99 FCR 116.

[86] Ibid.

[87] For extensive debate and discussion in relation to this proposed amendment, see, eg, the many articles published in The Australian (Sydney), 2–5 August 2000; Sydney Morning Herald (Sydney), 2–5 August 2000 and The Age (Melbourne), 2–5 August 2000. Without the support of the Labor Party and the Australian Democrats, such legislation seems unlikely to be passed unless individual members cross the floor.

[88] And note that the United Nations Convention on the Rights of the Child, to which Australia is a signatory, contains no definition of ‘family’ that would support this view, but rather, refers to a child’s family environment: Convention on the Rights of the Child, opened for signature 20 November 1989, 1588 UNTS 530, 28 ILM 1448, preamble (entered into force 16 January 1991).

[89] This is the effect of proposed cl 22(1A) of the Sex Discrimination Amendment Bill (No 1) 2000 (Cth), introduced 17 August 2000, which would provide that

[n]othing in this section makes it unlawful to refuse a person access to, or to restrict a person’s access to, assisted reproductive technology services if that refusal or restriction is on the ground of the person’s marital status and is imposed, required or permitted by or under a law of a State or Territory.

A report in the Sydney Morning Herald suggests that this is designed to assist those States who wish to place further restrictions on those who can access the services, such as a five year living together requirement for women in de facto relationships: Margo Kingston, ‘De Factos Face

5-Year IVF Wait’, Sydney Morning Herald (Sydney), 22 August 2000, 2.

[90] NSWLRC, Review of the Adoption of Children Act 1965 (NSW), Report No 81 (1997) xli, recommendation 58. See Adoption Act 2000 (NSW), which implements many of the recommendations, but not the one in question. The adoption issue is an emotive one, but is often presented in a quite misleading way since there are very few children available for adoption in Australia. In fact, the rates of adoption have declined dramatically from a high of 9798 adoptions in

1971–72 to 543 adoptions in 1998–99. Of those 543, only 127 were local (cf inter-country) adoptions by non-relatives. The other main category is ‘known’ child adoptions, mostly step parent adoptions: Australian Institute of Health and Welfare, Adoptions in Australia, 1998–99 (1999) 3–6. The relevant analogy in lesbian or gay families would be second parent adoptions.

[91] There is an accumulating body of research demonstrating that increased penalties do not have a demonstrable deterrent effect: Franklin Zimring and Gordon Hawkins, Deterrence: The Legal Threat in Crime Control (1973); Alfred Blumstein, Jacqueline Cohen and Daniel Nagin (eds), Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (1978); Roderic Broadhurst and Nini Loh, ‘Selective Incapacitation and the Phantom of Deterrence’ in Richard Harding (ed), Repeat Juvenile Offenders: The Failure of Selective Incapacitation in Western Australia (2nd ed, 1995) 55; Neil Morgan, ‘Capturing Crims or Capturing Votes? The Aims and Effects of Mandatories’ [1999] UNSWLawJl 52; (1999) 22 University of New South Wales Law Journal 267. For a discussion of the related phenomenon of law reform or policy-making by talkback radio see Russell Hogg and David Brown, Rethinking Law and Order (1998).

[92] This is not a solely Australian phenomenon. Compare the language used in some recent family law publications from (respectively) the US, Canada and the UK: Mary Ann Mason, The Custody Wars: Why Children Are Losing the Legal Battle and What We Can Do about It (1999); Nicholas Bala, ‘A Report from Canada’s “Gender War Zone”: Reforming the Child-Related Provisions of the Divorce Act(1999) 16 Canadian Journal of Family Law 163; see also Richard Collier, ‘From Women’s Emancipation to Sex War? Men, Heterosexuality and the Politics of Divorce’ in Shelley Day Sclater and Christine Piper (eds), Undercurrents of Divorce (1999).

[93] In introducing a series of articles about family law reform that came out of a Family Law Teachers’ Workshop held in Byron Bay in September 1999, and which formed vol 14(2) of the Australian Journal of Family Law, Professor John Dewar commented:

The consistent message of all the research described here is that, in its day to day operation, family law fails to protect women and children from financial and physical harm. Yet this message seems to go unheeded by family law policy makers. Family law policy often seems to be made in the teeth of, rather than on the basis of, the research and other empirical evidence available.

‘Introduction’ (2000) 14 Australian Journal of Family Law 79, 79.

[94] For discussion, see Regina Graycar, ‘The Relevance of Violence in Family Law Decision Making’ (1995) 9 Australian Journal of Family Law 58; Juliet Behrens, ‘Ending the Silence, but ... Family Violence under the Family Law Reform Act 1995(1996) 10 Australian Journal of Family Law 35. More recently, research is starting to look at the link between violence and post-separation poverty: see Grania Sheehan and Bruce Smyth, ‘Spousal Violence and Post-Separation Financial Outcomes’ (2000) 14 Australian Journal of Family Law 102.

[95] There are examples of this theme in the Parliamentary Debates on the Family Law Reform Bill 1995: see, eg, Commonwealth, Parliamentary Debates, House of Representatives, 9 November 1994, 2963 (Robert Katter).

[96] Cosic, above n 39, 20.

[97] Law Commission of Canada, above n 11, 14.

[98] One of the best discussions of this phenomenon is by Kim Lane Scheppele in her ‘Manners of Imagining the Real’ (1994) 19 Law and Social Inquiry 995. See also for a discussion of the ‘stock story’, Richard Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ (1989) 87 Michigan Law Review 2411, 2418–22.

[99] See Hancock, above n 76, 28–30 for an analysis of how the majority of views put to parliamentary committees such as the 1992 Joint Select Committee come from non-resident parents. This issue of the differential access of women and men to political discourses was expressly put to the Joint Select Committee: see Reg Graycar, Submission to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Part 2 (1991) 712; see also Martha Fineman, ‘Illusive Equality: On Weitzman’s Divorce Revolution[1986] American Bar Foundation Research Journal 781, 787–8; Ruth Lister, ‘Women, Economic Dependency and Citizenship’ (1990) 18 Journal of Social Policy 445.

[100] I am indebted to Jenni Millbank for this insight. Of course, as she rightly points out, this goes only so far — when it comes to children, there is another discourse entirely.

[101] Which, of course, has a negative impact on children: see Patrick Parkinson, ‘Custody, Access and Domestic Violence’ (1995) 9 Australian Journal of Family Law 41; Chief Justice Alastair Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1.

[102] See McDonald, above n 64; Funder, Harrison and Weston, above n 64; more recently, Weston and Smyth, above n 65.

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