First act of the family law review should be using research we already have

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We already have a great deal of high-quality information about what works, and what doesn’t, in our family law system. shutterstock

This article appeared in The Conversation on 4 October 2016. Information about the first holistic  review of the family law system since it was created in 1974 can be found on the Australian Law Reform Commission website.

Renata Alexander, Monash University

On September 27, Attorney-General George Brandis commissioned the Australian Law Reform Commission (ALRC) to undertake what he described as “the first comprehensive review of the family law system” since the commencement of the Family Law Act in January 1976.

The terms of reference are extremely wide-ranging. Producing a report by March 31, 2019, seems overly ambitious.

There has been universal support for such a review from key players in family law, as well as those more on the periphery such as politicians espousing party-dictated views or representing individual (usually aggrieved) constituents.

As much as such a review will serve a valuable purpose, it is important to remember that our family law system has not remained static for the last four decades. There have been numerous significant reforms not only to the statute itself, but to the operation of courts determining family law cases, and allied areas such as family dispute resolution and counselling.

The Family Law Act initially introduced several revolutionary changes. For example, it established the Family Court of Australia; introduced “no-fault” divorce; and totally revamped laws about determining children’s cases and property settlement.

It also set up a new system of alternative dispute resolution and established the Australian Institute of Family Studies (AIFS) as a dedicated research body, along with the Family Law Council (FLC) as a representative body to monitor and advise the federal government on operational and policy matters.

Since then, various aspects of our family law system have been examined and changed.


Further reading: No simple solution when families meet the law


Family law legislation has undergone significant expansion and reform. It now covers divorce, nullity, parental responsibilities and obligations in respect of all children, and children’s rights.

It covers de facto relationships (marriage is dealt with specifically by the Marriage Act), spousal maintenance, division of property binding financial agreements, and family violence. There are now two federal family law courts, but they are overburdened and have long waiting lists.

Researchers too have not been idle. For example, the 1980s and 1990s saw a plethora of reports by the ALRC about domestic violence (1986), matrimonial property (1987), contempt (1987), multiculturalism and family law (1991), justice for women (1994), and complex child contact cases (1995).

More recently, the ALRC has produced two substantial reports on family violence.

In addition, the AIFS, the FLC and the family law courts have each produced numerous reports on a wide range of areas including child protection, parenting arrangements post-separation, and family violence.

The Family Law Act established the Family Court of Australia. Shutterstock

There have also been important bipartisan state and federal parliamentary inquiries, most notably the federal inquiry into child custody arrangements in the event of family separation. This in turn produced “Every picture tells a story” in 2003 and the parliamentary inquiry into how family law can better support and protect those affected by family violence in 2017.

All these resources reflect a rich but largely unconnected tapestry of information about our family law system, which the ALRC can use to assess how best to reform the system.

Yes, the ALRC review of the Australian family law system is most welcome. However, it need not waste precious time or resources to remind us, as Leo Tolstoy wrote in Anna Karenina, that “all happy families resemble one another, each unhappy family is unhappy in its own way”.

Notwithstanding the wide terms of reference, some other areas merit attention. These include the use of “good” evidence-based social science in determining the best interests of children and crafting parenting orders.

Another area is access to justice. The high cost of legal representation and cuts to legal aid mean large numbers of self-represented litigants. Also there is the question of mandatory education for judges and legal professionals in areas such as family violence and child abuse, which comprise over half of the courts’ work loads.

We know that families are complex entities when intact. And it is equally complex and complicated catering to the needs of adults and children once those family structures break down.

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How heterosexual couples are protesting marriage inequality

This article was originally published in The Conversation on 24 September 2016. Dr Becky Batagol is a Convener of the Monash Feminist Legal Studies Group.

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Heterosexual couples who believe in marriage equality, and the civil celebrants who marry them, are using wedding ceremonies to protest marriage law in Australia. shutterstock

Becky Batagol, Monash University

As the spring wedding season warms up, increasing numbers of heterosexual couples are using their wedding ceremonies to call for a change to Australia’s marriage law.

Australian support for marriage equality has steadily increased over the years; it has risen from just 38% in 2004. A July 2014 poll showed 72% of Australians supported the legalisation of same-sex marriage.

A clear majority of married heterosexual couples favour marriage equality. And a 2016 poll suggests that support for marriage equality is high among second-generation Australians.

Despite this support for marriage equality, marriage itself is in decline in Australia. There were just 5.2 marriages per 1000 people in 2014, down from 6.2 in 2004 and 9.2 in 1950. These figures are much lower than in the US. And 74.1% of Australians who do get married now choose a civil rather than religious wedding.

Institutionalised discrimination

At every civil wedding ceremony in Australia, the discriminatory nature of marriage must be announced by law. The Marriage Act obliges civil celebrants to say:

Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

This requirement, known colloquially as the “monitum” (Latin for “warning”), has existed since the Marriage Act was enacted as Australia’s first national marriage law in 1961.

The provision reflects common law and religious views prevalent at the time. Garfield Barwick, the key architect of Australia’s marriage laws, explained in 1960 that the legislation was:

… a contribution towards the stability of marriage.

These ideas persist today. Arguments for protecting the institution of marriage were mustered again by the parliament in 2004, this time to justify explicitly excluding same-sex couples from the Marriage Act. Philip Ruddock, then the attorney-general, said:

The government has consistently reiterated the fundamental importance of the place of marriage in our society … [and will] take steps to reinforce the basis of this fundamental institution.

Heterosexual solidarity

Given the ubiquity of civil marriage and support for marriage equality, how do heterosexual brides and grooms who support marriage equality manage the legal requirement of the monitum at their weddings?

My ongoing research reveals heterosexual couples who believe in marriage equality, and the civil celebrants who marry them, use their wedding ceremonies to protest marriage law in Australia in a number of ways.

Most common were “statements of protest” read by the civil celebrant, bride, groom or another guest before or after the monitum. These express dissatisfaction with the current state of the law and a desire for reform.

Other methods included:

  • the celebrant reading the monitum quietly or turning the PA system down;
  • holding private, legal wedding ceremonies with the monitum, and then a separate, public ceremony without it;
  • holding a commitment ceremony instead of a wedding;
  • having guests wear ribbons in solidarity; and
  • from one celebrant, the omission of the monitum during small weddings where they were confident they would not be reported.

My sample is too small to reliably state the extent to which there is a commitment to marriage equality in civil wedding ceremonies nationwide. Estimates from the celebrants I spoke to ranged, at the low end, from a commitment to marriage equality in 2-3% of weddings conducted by that celebrant to 80-90% at the high end.

I will be surveying all registered Australian civil celebrants to reliably understand the magnitude of the protest phenomenon.

Multiple recent opinion polls suggest the majority of Australians back same-sex marriage. Charles Platiau, CC BY-NC

Reconciling protests with personal opportunity

What my research does show is getting married while disagreeing with marriage law is a pretty narrow space to inhabit.

One bride, Edith (not her real name), arranged for her celebrant to make a heartfelt statement of protest after the monitum at her wedding. Edith acknowledged the difficulties:

I do have friends that say they wouldn’t get married until the law changes. And I felt like I didn’t want to wait for that. We have reasons for wanting to get married now and do it. There are probably some people who would feel that that’s selling out, and I totally get that, but I just felt like I really wanted to make that clear and not partake in something exclusionary.

Some couples aren’t prepared to sign up. Suzanne and her partner, Kieran, had a wedding ceremony surrounded by family and friends in 2015, but this was not a legal marriage. Suzanne explained why:

Now, women aren’t so much discriminated in the Marriage Act, but same-sex couples absolutely are. And, to me, signing that document is equivalent to saying, ‘I don’t like Hitler, I’m going to join the Nazi Party’ … [people that] get married are inadvertently endorsing the legislation.

If everybody turned around and said, ‘Well, I’m just not going to get married under this legislation anymore,’ the government would be forced to look at it … I cannot sign that document, because as soon as I say I’m legally married … I am consenting to the very issues that I stand against.

Suzanne’s views might suggest something important about Australia’s discriminatory marriage laws: rather than protecting the institution of marriage, they may be directly damaging it. Not only are LGTBI couples unable to access marriage, but straight couples may be unwilling to join an institution seen as exclusionary and outdated.

New Scarlet Letter Podcast: Dr Renata Alexander

A new Scarlet Letter podcast is now out featuring feminist academic and barrister Dr Renata Alexander.

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This interview features Renata talking about how coming from a holocaust survivor family, feminism has become the main vehicle through which she conducts her academic and legal practice. Listen to learn about how the Sit Down Girlie column came about.

We have begun the podcast series by interviewing members of the feminist legal studies group. In this episode, we focus on the work of our family violence researchers, one of the six areas of research strength we have in our Feminist Legal Studies Group.

Our six areas of particular research strength are
1. family violence;
2. alcohol, drugs and gender;
3. the impact of energy policy/climate change upon women;
4. women’s economic empowerment (including labour rights, taxation, unpaid work, privacy);
5. women, poverty and international movement;
6. reproductive health and abortion reform.

Renata is interviewed in this episode by Tamara Wilkinson and Becky Batagol.

You can access the podcast episode here through Soundcloud and iTunes.

Tamara, Renata and Becky 16 August 2017

Tamara Wilkinson, Renata Alexander (and her tights) and Becky Batagol in the interview room

No simple solution when families meet the law

By Dr Renata Alexander, Senior Lecturer in Law, Monash University

This article was originally published in The Conversation on June 1, 2016 as part of the CHANGING FAMILIES  ten-part series where authors examine some major changes in family and relationships, and how that might in turn reshape law, policy and our idea of ourselves.

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Families going through breakdown need understanding, but so do lawmakers trying to find fair outcomes from complex laws.
Shutterstock

It has often been said that when Australia’s white Anglo-Saxon founding fathers drafted the Constitution in 1901, they could not have foreseen how family constellations would change over the next century and how family law would (or would not) keep abreast of those changes.

We now have many different types of families. We have families with and without children, single parents and blended or step families. We have heterosexual and same-sex de facto couples; separated, divorced and widowed couples. We also have families with children born through assisted reproductive technology or altruistically “acquired” through surrogacy, adoption or foster care.

All these are well depicted in popular culture including a plethora of television shows dating back to Batman and his ward Robin, and the ever-happy blended Brady Bunch through to the contemporary How I Met Your Mother and comic Modern Family.

The truth is, however, that the Old and New Testaments hold numerous examples of precursors to the traditional nuclear family of a father, mother and two children.

Adam and Eve had two sons and then one son killed his brother, transforming their dynamic to a one-child family. Moses was abandoned and raised by strangers. Rachel could not conceive and added a child to her family through a surrogate. Ruth and Naomi were both widowed and childless but made a life together. Jesus Christ was a product of an immaculate conception and brought up by foster parents.

Given these examples, it has taken millennia for the law to catch up.

The complex web of family law

In Australia’s family law system, each of these configurations is regulated by co-existing and sometimes conflicting legislation. The Family Law Act was only the second significant piece of family law legislation enacted since the Constitution that endowed the federal parliament with powers to legislate about divorce and matrimonial matters.

However, many family law areas come under both federal and state laws, or state laws alone.

A good example of the overlap is the area of child welfare and child protection. Australia’s family law courts (namely the Family Court and the Federal Circuit Court) are specialist federal courts. Their job is to determine with whom a child should live, how much time a child spends with the other parent, and other issues about the child’s long-term welfare.

But child protection and welfare cases are also heard in state courts under state laws involving state-mandated child protection agencies. So, one family can find itself embroiled at once in lengthy, expensive and emotionally taxing proceedings in different courts with different jurisdictions.

Each of these state and federal courts houses discrete hierarchies exercising different powers and applying different tests to determine the “best interests of the child”.

Judicial discretion is not unfettered and each piece of relevant legislation provides some guidance and predictability. But as former High Court justice Michael Kirby once opined, decision-making is:

… a complex function combining logic and emotion, rational application of intelligence and reason, intuitive responses to experience.

Not only are decision-makers influenced by their own views and experiences, they are informed and influenced by a burgeoning body of research in many fields of social and medical sciences. It is increasingly difficult to navigate through the vast oceans of research material available and to differentiate between “good” and “bad” research.

For example, in the early history of the Family Law Act in the 1970s, the Family Court often applied the “tender years” and “maternal preference” presumptions.

These deemed it preferable for young children up to the age of seven years to live with their mothers upon the break-up of the traditional heterosexual nuclear family. They were not prescribed by the statute itself, but rather a vestige of judicial attitudes that decided custody cases before the Family Law Act was introduced with its specialist Family Court.

Changing attitudes to family violence

Another example of the shift in judicial and community attitudes relates to the relevance of family violence in parenting cases. Historically, family law courts quarantined family violence as unrelated to parenting capacity and child welfare. A man could be “a violent husband but a good father”.

This attitude did not shift substantially until the 1990s, when both society and the courts started to recognise that witnessing family violence could cause long-term damage to children.

Another issue is whether our adversarial system of intra-family dispute resolution (another legacy of the Commonwealth) is suitable to multicultural Australia. Certainly alternative forms of dispute resolution, such as counselling and mediation, may assist. But, often, decisions supposedly reached by the disputing parties themselves are made after “bargaining in the shadow of the law” or in the shadow of gendered or culturally specific beliefs and practices.

Also, if a resolution is not reached or is not honoured and complied with, a decision needs to be made and imposed by a third party. Under our system, that third party is a judge, but the question again arises as to how judicial discretion is exercised.

Family law is a complex area without simple solutions. There are many participants and stakeholders, not least of whom are the adults and children involved.

We need to be sensitive to their needs and best interests. We also need to be respectful of those who are the decision-makers, while at the same time continuing to scrutinise and review the decision-making processes to ensure a just system.


The ConversationRead the other instalments in the Changing Families series here.

Renata Alexander, Senior Lecturer in Law, Monash University

This article was originally published on The Conversation. Read the original article.