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	Alternative Law Journal

Family law in the future

A feminist family lawyer’s crystal-ball gazing.

Renata Alexander
Renata Alexander is an accredited family law specialist in Melbourne.

In January 2001, the Family Law Act 1975 (Cth) will celebrate its 25th anniversary of operation. For those of us practising, teaching or studying in the area of family law this is quite a milestone. In order to play Nostradamus and predict or speculate on future family law developments, it is first necessary to paint a brief historical background.

History

The Family Law Act 1975 (Cth) was only the third major piece of Commonwealth family law legislation since federation. Notwithstanding the facultative heads of power in s.51 of the Constitution as to ‘(xxi) marriage and (xxii) divorce and matrimonial causes and in relation thereto, parental rights and the custody and guardianship of infants’, the Commonwealth parliament did not legislate significantly in the area of family law until enacting the Matrimonial Causes Act 1959 and the Marriage Act 1961. These Acts both came into effect in 1961 and together, they consolidated the laws of marriage, divorce and nullity into one federal code. The 1959 statute also conferred power in matters of ancillary relief including custody and access, maintenance and property in relation to married couples and their children, but only if such relief was attached to applications for principal relief. Otherwise, such ancillary matters, together with other family law issues, including ex-nuptial children and de facto property, remained within State jurisdiction and so State courts continued to deal with family law matters under co-existing State and federal laws.

The Family Law Act was assented to on 12 June 1975 and commenced operation on 5 January 1976. Reading the various submissions, reports and parliamentary debates at the time provides a fascinating picture of a society grappling with competing moral, political, social, legal and religious mores and codes dictating the formation and disintegration of Western families.

The new Act literally revolutionised family law. It repealed all Matrimonial Causes Acts and replaced parts of the Marriage Act. It abolished matrimonial fault as the basis for divorce and replaced 14 grounds of divorce (to the lament of many private investigators) with a single fault-free ground of ‘irretrievable breakdown of marriage’ evidenced by a separation of the parties of at least 12 months. The Act also reformed the law as to annulments and reformed ancillary matters pertaining to children, maintenance, injunctions and property. As part of the revolutionary package, a new specialist federal Family Court of Australia was established with newly appointed judges, and its own counselling, conciliation and research facilities.

One of the most radical changes in the Family Law Act appeared in the main provisions of Part VII relating to children including the requirement that ‘the Court shall regard the welfare of the child as the paramount consideration’ in custody and access matters. The ‘welfare of the child’ principle was bolstered by amendments in 1983, 1987 and 1991 and continued to reign paramount over a non-exhaustive non-prioritised list of factors to be considered by the Court in proceedings relating to children. The provisions in Part VII also provided great scope for judicial discretion.

Over subsequent years, the jurisdiction of the Family Court was battered by various High Court challenges and legislative amendments but also importantly expanded to include ancillary relief without principal relief, ex nuptial children[1] and matters under cross-vesting legislation.

In June 1996, the Family Law Reform Act 1995 (Cth) came into effect and introduced an entirely new Part VII on ‘Children’. Earlier concepts of guardianship, custody and access were replaced by new concepts of parental responsibility and parenting orders about residence, specific issues and contact. The automatic nexus between custody and daily care and control of a child was broken and each part of a child’s existence is now separated, compartmentalised and discretely determined.

In addition, the concept of the ‘welfare of the child’ was replaced by the ‘best interests of the child.’ The new s.68F prescribes how a court is to determine what is in a child’s ‘best interests’ and provides a shopping list of relevant factors, all still subject to judicial discretion on the particular facts and merits of each individual case. The paramountcy principle has been reproduced in s.65E and in addition, s.60B inserts a new section on the objects and principles of the Act in respect of children and their best interests. These objects are consistent with the spirit of the United Nations Convention on the Rights of the Child which prescribes children’s rights and parental obligations and responsibilities.[2]

So much for the legislative history of the Family Law Act. I shall now look prospectively at the Act and family law. In deciding which areas of family law to consider in terms of future trends and direction, I suspended my feminist fingers over a crystal ball and gazed at three specific areas, namely children’s matters (especially contact and fathers’ rights), property division and private ordering (especially mediation).

Children’s matters and fathers’ rights

Although the Family Law Act is gender-neutral in its terms and since the early 1990s the Family Court has been painstakingly careful not to display any overt gender bias, in my view the 1996 amendments and the Court’s interpretation of the new objects and principles effectively work together to discriminate against residence or custodial mothers.

Stating and re-stating the right of a child to have contact (formerly access) with both parents was a new development in the 1996 legislation. For the previous 20 years, the Family Law Act had contained no definition of access nor any statement of a parental or child’s right to access. Case law vacillated and merely confirmed that access was simply a question of the welfare of the child.

Since 1996 however, contact is the ‘right’ of the child under s.60B; part of each parent’s ‘parental responsibility’ under ss.61C and 61D; a matter for a ‘parenting plan’ which parents are encouraged to reach and agree on pursuant to s.63C; a type of ‘parenting order’ under s.64B; and is a factor to be considered as part of a child’s ‘best interests’ under s.68F.

On separation, parents usually agree privately that children are better off living with their mother even though the father is more commonly in a superior financial position. There is a general cultural gender bias in Western society towards the mother having primary care and responsibility for children. The major explanation for women retaining care and custody is that it simply recognises and maintains the pre-separation status quo. Both during a marriage or cohabitation and after separation, women are more likely to adapt their lifestyles and employment and schedules towards caring for children as well as carrying out the bulk of household and domestic responsibilities. Even if employed outside the home, most women are the primary caregivers of any children in intact families and so it appears beneficial for children (and is advantageous to men) that the same arrangement and division of labour continue once the family unit breaks down and new configurations are formed. Such an arrangement may provide continuity and stability for children but also maintains the vulnerability and dependence of women and ensures the independence and availability (for employment changes and/or repartnering) of men.

On separation, there is no doubt that many fathers want and deserve to maintain contact with their children and should do so. More importantly, many children want and need to see their fathers on a regular basis. Certainly some studies demonstrate that children cope much better if their parenting is shared post-separation and if they spend equal or significant time with both parents. On the other hand, there also exists ample evidence as to volitional paternal abandonment, fathers failing to exercise residence or contact rights pursuant to court orders, fathers refusing to pay child support, fathers interfering with and trying to control former partners and children, and cases where contact by a father with a child is harmful or counter-productive.

However, the 1996 changes and the Family Court’s general encouragement of contact virtually at all costs supports the position of men as fathers even where the parents never cohabited (and the father never lived with the child), where the father had little or no active involvement with the children and day-to-day responsibilities (outside of occasional recreational activities), or where the father had been abusive or violent towards the mother and/or children and/or other family or household members.

The Family Law Act is now premised on, and the Family Court accepts and supports, the false ideology of modern fatherhood and the ‘new father’. Fathers are promoted and marketed not only as breadwinners and providers but also as sensitive, nurturing, caring male versions of mothers. For some modern fathers, this may well be true. Some fathers are active and involved home-makers and parents. However, this is not a generally accurate picture of the modern heterosexual Western nuclear family and ‘the discussion about the “new father” far outweighs the evidence to demonstrate his existence’.[3] In fact, research and experience suggest that the ‘new father’ only lives and breathes in a minority of families and does not warrant the high degree of community, judicial and legislative acclaim and praise received.

The reality of paternal participation is reliably documented in Australia and overseas with consistent results. Research shows that traditional sex-segregated roles continue to exist in the nuclear family and the performance or avoidance of domestic work (including childcare) remain true to their historical stereotypes. In the 1990s, women still assume 70% of domestic responsibilities and even if employed part-time or full time outside the home, married or partnered women do twice as much work on family obligations (housework and childcare) as do married or partnered men.[4]

The truth is that the new father is, generally speaking, not equally active and participatory in childcare, child-rearing and household work within a family unit. Modern fatherhood remains impervious and impenetrable to any ideology of the sharing of parental duties and childcare. Yet the Family Law Act and the Family Court have embraced a false image of fathers as equals in terms of childcare and household work. Fathering and fatherhood have been unquestioningly adopted as men’s inviolable, natural rights.

In determining children’s matters like contact, the Family Court accepts a presumption of equality even though such a presumption may be factually false and misguided. Treating fathers as equal participants in childcare and housework discriminates against women in children’s matters (as well as in property and spousal maintenance matters). More importantly, such judicial acceptance of biological determinism and pro-father interpretation of legislative provisions seem to override the paramountcy of the best interests of the child by promoting contact irrespective of past history and the future needs of children and their primary caregivers.[5]

What does this blind condonation of men’s rights as fathers portend for the future? Notwithstanding the claims by the Commonwealth Attorney-General that the Family Law Act now focuses away from parental rights over children towards the best interests of children and children’s rights,[6] the Act and the Family Court have become arenas for men’s rights, fathers’ rights and parental self-interest. The stated legislative rights of children ‘to know and be cared for by both parents’ and ‘to have regular contact with both parents’ have provided legitimisation for an artificially-created breed of ‘new modern father’ claiming rights and privileges on false pretences and with increasing influence and at times militancy.

There is no doubt that men can be equally as competent or as incompetent as women as residence or contact parents. That is not my point. It is my contention that children’s rights and best interests have been overwhelmed by notions of fatherhood, men’s rights and men’s needs. The rights of a non-custodial father appear to take precedence over a child’s best interests and the judgment, wishes and needs of the caregiving custodial mother. Recent amendments to the Family Law Act and current judicial attitudes perpetuate the ideology of new modern fatherhood which is illusory and fallacious.

Both our legislators and adjudicators have fallen victim to the fathers’ rights propaganda machine and need to be informed and re-educated so that the welfare and best interests of children remain paramount.

Property settlements

Over the past two decades, various aspects of matrimonial property law under the Family Law Act have been scrutinised. The breadth of judicial discretion has been regularly criticised for inconsistency and unpredictability. However, the actual provisions of Part VIII ‘Property, Spousal Maintenance, Agreements’ remain relatively pristine.

On 30 March 1999, the Attorney-General released a discussion paper entitled ‘Property and Family Law — Options for Change’.[7] The proposals for reform are only in general terms and are far from radical but deserve some response as part of my attempt at family law prognostications. Two options have been presented for discussion.

‘Separate property’ regime

The first option is a ‘separate property’ regime and reflects much of the law and philosophy underpinning the existing system. Under this option, parties to a marriage would retain any property they had prior to the marriage and any property acquired separately during the marriage. On marriage breakdown, all property owned by the parties (including superannuation whenever accumulated) would be available for reallocation by the Court, regardless of when the property was acquired. The starting point for the distribution of property would be equal sharing based on the assumption that each party had contributed equally. The Court would still, however, retain its discretion to depart from equal sharing by examining past financial and non-financial contributions as well as future needs of the parties, being guided by a defined set of adjustment factors.

This option is not a novel proposal. A rule of equal division based on equal contributions as the starting premise was recommended by the Australian Law Reform Commission in 1987[8] and by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act in 1992.[9] It then appeared in the Family Law Reform Bill (No 2) 1995 (which was shelved and not enacted). Equality of contribution as the starting point is retrograde rather than futuristic as it returns family property law to its original position prior to the 1984 High Court decision in Mallet.[10] In addition, the option poses several theoretical and practical problems.

‘Community of property’ regime

The second option proposed in the recent discussion paper is a ‘community of property’ regime based on the assumption that marriage is an equal partnership. Under this regime, communal assets include those assets acquired during the period of cohabitation by each of the parties, whether in separate or joint names, together with the net increase in value over the period of cohabitation of all earlier acquired property. On marriage breakdown, each party would receive 50% of the communal assets and there would be no need to look at contribution. Each party would otherwise retain any property which they acquired outside of the period of marriage or total cohabitation. In certain circumstances, the Court could depart from the equal division.

Two models or sub-options for departure are proposed. One provides an exhaustive list of factors similar to the existing factors in s.75(2) but without the catch-all ‘any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account’.[14] The other sub-option allows grounds for departure based on ‘the economic consequences of marriage and its breakdown’. Five set factors are listed to guide the Court. Overall, option 2 with its sub-options has some advantages but also creates difficulties.

Family violence

Notwithstanding growing community, academic and judicial recognition of the impact of family violence as a factor influencing both past contributions and future needs in property and spousal maintenance cases, the discussion paper glaringly omits reference to family violence in both regimes proposed. Once again this omission discriminates against women who are most commonly the victims and survivors of family violence.

Traditionally the Family Court has not recognised the incidence or impact of family violence as a relevant factor in property or spousal maintenance matters. Family violence is not specifically listed in the factors in ss.75(2) and 79(4) (as it has been in children’s matters under s.68F since June 1996) and until recently, the Court has refused to include family violence in the wide catch-all provision of s.75(2)(o) of ‘any other fact or circumstance’. Until landmark decisions in 1997, family violence (and most conduct for that matter) was ignored unless it was shown to have direct financial implications.

In 1997, the Family Court finally recognised that family violence can increase or diminish a party’s contribution as homemaker or parent. In Kennon,[16] the Full Court formulated a statement of principle that where there has been violent conduct by one party towards the other during marriage which has had an impact on contributions, then a trial judge can take that conduct into account when assessing parties’ respective contributions under s.79.[17]

The decision in Kennon is limited in its applicability. First, the Court only focused on the relevance of family violence to the question of contribution and left open the question of whether such conduct is independently relevant under the needs factors in s.75(2). Second, the Court limited the principle to ‘exceptional cases’ or a ‘relatively narrow band of cases’.

These limitations are objectionable given that family violence is far from an ‘exceptional’ occurrence in family life and is one of the most serious, widespread and under-reported crimes in Australian society. Further, family violence is a gendered phenomenon and failure to acknowledge family violence and its repercussions constitutes overt gender bias against women.

Nevertheless, it is even more discriminatory and reprehensible that the Attorney-General’s property proposals ignore the incidence of family violence and reject the laudable change in attitude of the Family Court. Such an omission only serves to further decriminalise and sanitise family violence and to ensure that abused women remain invisible.

Overall, the property reform proposals do little to alleviate or remedy current problems experienced by women in matrimonial property settlements under the Family Law Act. Even if adopted, the Family Court will continue to rely on false assumptions, perpetuate sex-based division of labour and stereotypic roles for men and women, devalue or undervalue women’s contributions, privatise family violence and adopt a male version of reality which is far removed from the reality and struggles for many women and children. Any genuine reform proposals must address these issues.

Private ordering and mediation

All happy families are alike but an unhappy family is unhappy after its own fashion.

When the great novelist Leo Tolstoy wrote this first line in Anna Karenin in 1874, little did he know that he was foreshadowing the resolution of family disputes via private ordering.

Private ordering entails parties to a dispute reaching their own agreements. In the family law context, ante-nuptial agreements and financial agreements reached during cohabitation or post-separation and agreements as to children’s matters are all examples of private ordering. Private ordering through various alternative dispute resolution methods (especially mediation) has become ‘the flavour of the 1990s’ promoted as a more hospitable, cheaper and faster alternative to a costly, time-consuming and emotionally-draining adversarial system based on formal litigation and adjudication.[18]

Private ordering is fraught with problems for women. As Neave points out, women tend to do ‘poorly’ under private ordering and are usually disadvantaged by the terms of any agreements or compromises.[19] Both men and women are arguably under pressures to avoid expensive litigation, reducing the uncertainty of a different future, suffering emotional distress from separation and having problems accessing legal advice and representation. However, women are more likely than men to face such pressures because of their socially and economically weaker and more vulnerable positions and circumstances before, during and after marriage. They may be pressured into agreements about equal sharing of children (which generally end up with the mother having primary care and responsibility) and lower child support or they may compromise or forfeit entitlements in property division.

Many women are not in the same bargaining position as their husbands. They continue to bear the costs of single parenthood disproportionately and to face barriers in the paid workforce. They lack knowledge of their husbands’ financial situation; cannot afford independent legal advice and are refused legal aid; undervalue their own worth in terms of past contributions and lost opportunities; fear losing care of the children; fear future conflict or retribution if they fail to reach agreement; and simply want the dispute to be resolved quickly.

Private ordering merely replicates existing power imbalances between parties and fails to challenge or redress underlying inequities. It provides informal privatised justice whereby women reach agreements from a base of unequal bargaining power and lack of knowledge of financial matters and legal entitlements. The private and closed context of such agreements precludes any meaningful evaluation of the process or of any outcomes and ensures protection away from public debate and legal scrutiny.

Mediation has grown into the favoured tool for such informal justice and alternative dispute resolution and decision making. Amendments to the Family Law Act in 1996 elevated mediation (and other dispute resolution methods) to the near-mandatory status of a ‘primary’ method of dispute resolution. However, mediation is dangerous for women as it reproduces and perpetuates their socio-economic vulnerability and inequality.[20]

There is much hype and fervour about family mediation. Certainly there is some empirical evidence as to the benefits of mediation. The two main findings are that parties (men and women alike) are personally satisfied with mediation and that mediation has high settlement rates. So what? Little of the research and self-laudatory material has analysed the actual mediation process and no studies have looked at the actual contents of the settlements reached and how they compare to formally litigated and adjudicated outcomes in similar matters.[21] Further, mediators and mediation proponents have ignored issues such as race, culture, language, different socio-economic backgrounds, and disabilities.[22]

Notwithstanding the claims of many mediation advocates, mediation and litigation are not radical alternatives. Research does not unequivocally show that mediation is superior to litigation nor that it is necessarily faster, cheaper, fairer, more durable, improves parties’ relationships or helps to alleviate court workloads and waiting lists. Both mediation and litigation operate within parameters of what the law defines as the family, property, children’s issues and financial support. Both are constrained by the legal system and its rules and procedures (even if mediation is formally less legalistic). Both involve the language of rights and entitlements. Both involve a decision-making process that is influenced by the beliefs and values of professional third parties (be they mediators or counsellors or lawyers or judges) and both involve disparities in power, access to information, resources, bargaining abilities and tactics. However, only litigation has formal safeguards in terms of public and judicial standards, disclosure and scrutiny.

The growth of informal justice, private ordering and alternative dispute resolution with the relegation of ‘unhappy families’ to the private sphere serves to worsen rather than improve the position of women in the family and in society at large.

References

[1] Initially, the Family Court only had power over children of a marriage but between 1986 and 1990, all States except Western Australia referred most of their legislative powers with respect to children including ex nuptial children to the Commonwealth. Western Australia has its own Family Court of Western Australia that exercises State and federal jurisdiction.
[2] UNCROC was adopted by the United Nations General Assembly on 20 November 1989 and was ratified by Australia on 17 December 1990.
[3] Lewis, C. and O’Brien, M. (eds), Reassessing Fatherhood, Sage, London, 1987, p.3. This comment still applies in the late 1990s.
[4] For Australian research, see Bittman, M., Juggling Time: How Australian Families Use Time, Office of the Status of Women, Department of the Prime Minister and Cabinet, Canberra, 1991; and Bittman, M., ‘Changes at the Heart of Family Households’, (1995) 40 Family Matters 10.
[5] The priority of ensuring contact is clearly evident in s.68S which prescribes that a contact order will prevail over a family violence order to the extent of any inconsistency. Contact is accorded priority over protecting children and their caregiver from a violent father or former partner.
[6] The Honourable Daryl Williams, Family Law — Future Directions. Address by the Federal Attorney-General and Minister for Justice to the National Press Club, Canberra, 15 October 1996.
[7] This discussion paper is available from the Family Law Branch of the Attorney-General’s Department in Canberra.
[8] Law Reform Commission, Matrimonial Property, Report No 39, Sydney, 1987.
[9] Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, The Family Law Act 1975: Aspects of its Operation and Interpretation, Canberra, 1992.
[10] Mallet v Mallet (1984) 156 CLR 605.
[11] Australian research over the past 50 years shows a ‘slight’ increase in men’s involvement in unpaid work at home but only in a few areas. Men select what they want to do and women do the rest, irrespective of their own paid employment.
[12] Men can of course argue that their financial contribution usually outweighs that of their wives yet under the equality proposal, women will be given credit for equal financial contribution. This argument can be countered by the findings of two surveys of contested Family Court property cases in 1983 and in 1990. Wives consistently performed far more of the unpaid household and childcare labour and also made substantial contributions to the family income, assets and resources. In terms of homemaker and parental contribution, there was no equivalent finding of husbands providing substantial domestic support in addition to financial contributions. See Bordow, S. and Harrison, M., ‘Outcomes of Matrimonial Property Litigation: An Analysis of Family Court Cases’, (1994) 8 Australian Journal of Family Law 264.
[13] For a discussion of the practical problems with both proposals in the discussion paper, see Strickland, S., Property Law: A New Era, paper presented at the 3rd Annual Family Law Intensive, Leo Cussen Institute, Melbourne, 1 May 1999.
[14] See s.75(2)(o).
[15] For example, Best and Best [1993] FLC 92-418; Mitchell and Mitchell [1995] FLC 92-601 and Clauson and Clauson [1995] FLC 92-595. In these cases, the Family Court referred to social science material and the Supreme Court of Canada decision in Moge and Moge [1992] 3 RCS 813.
[16] Kennon and Kennon [1997] FLC 92-757. See also Marando and Marando [1997] FLC 92-754 (earlier single judge decision).
[17] Kennon and Kennon [1997] FLC 92-757 per Fogarty and Lindenmayer JJ at 84,294 and per Baker J at 84,329.
[18] Recently the Attorney-General announced that the Family Law Act would be amended so that people will be able to enter into binding financial and property agreements before and during marriage and after separation. These proposals conform to earlier proposals by the Australian Law Reform Commission in 1987 and the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act in 1992 (see refs 8 and 9 above).
[19] See Neave, M., ‘Resolving the Dilemma of Difference: A Critique of “The Role of Private Ordering in Family Law”’, (1994) 44 University of Toronto Law Journal 97; and Neave, M., ‘Private Ordering in Family Law — Will Women Benefit?’ in Thornton, M. (ed), Public and Private: Feminist Legal Debates, Oxford University Press, Melbourne, 1995.
[20] There are numerous feminist critiques of mediation. For example, see Alexander, R., ‘Family Mediation: Friend or Foe for Women?’, (1997) 8 Australian Dispute Resolution Journal 255.
[21] For a review of the research, see Benjamin, M. and Irving, H.H., ‘Research in Family Mediation: Review and Implications’, (1995) 13(1) Mediation Quarterly 53; and Alexander, R., ‘Family Mediation Under the Microscope’, (1999) 1 Australasian Dispute Resolution Journal 18.
[22] Most mediation clients are white, Anglo-Saxon, middle aged, middle class and educated.