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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New Podcast: The Scarlet Letter speaks to Dr Kate Seear

In this episode of the Scarlet Letter we talk to Dr Kate Seear about the origins of her feminism. We also learn about her work on addiction and the law, as well as her well-known football podcast, the Outer Sanctum.

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Dr Kate Seear

Interviewers: Dr Azadeh Dastyari and Tamara Wilkinson.

Mia Freedman et al are wrong: being drunk doesn’t cause rape

by Dr Kate Seear, Senior Lecturer, Faculty of Law, Monash University

by Professor Suzanne Fraser, Professor and Project Leader, National Drug Research Institute, Curtin University

This article was originally published in The Conversation on 12 November, 2013.

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Media commentators have linked alcohol use with sexual assault.
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Controversy over rape, alcohol consumption, and responsibility reignited last month when US columnist Emily Yoffe penned an article provocatively titled College women: stop getting drunk. But the link between alcohol use and sexual assault is less certain than it may seem.

Yoffe argued that alcohol is often a “common denominator” in rape, quoting a 2009 US survey showing 20% of college women reported having been sexually assaulted since commencing their studies, and that 80% of these cases “involved” alcohol.

According to Yoffe, alcohol both enables sexual predators and renders women vulnerable to assault. She concluded that female college students should “start moderating their drinking”.

Despite some references to men, her focus was overwhelmingly on what women could do to avoid rape – ideas that were echoed by Australian columnist Mia Freedman.

The public response to both columns was swift and overwhelmingly critical.

Many feminists raised concerns that these messages appear to blame rape victims for attacks, which may cause further distress to women who often already blame themselves. The focus of the columns was unfairly and disproportionately on women’s actions, with too little attention paid to the actions of men.

What’s more, most rapes don’t occur in the circumstances these columnists describe – much higher rates of sexual assault occur at the hands of partners, family members, workmates, and friends.

Drugs, alcohol and crime

But Yoffe and Freedman’s assumptions about alcohol, and about cause and effect have been largely overlooked.

Two claims have been especially prominent. The first is that alcohol disorients women and makes them more vulnerable to attack. The second is that alcohol somehow makes men more impulsive and emboldens them to rape.

Such claims falter in the face of reality.

Recent research challenges the claim that alcohol and other drugs cause crime in the absence of other factors. We know most people drink alcohol (even in large volumes) but don’t perpetrate rape.

Although it’s common practice to ascribe a set of social problems or crimes to drug use, these effects are nowhere near as widely experienced as we assume.

Indeed, as sociologists of drugs and addiction already know, claims like these reveal less about drugs and more about our hopes and fears about individuals and societies.

While it might comfort us to think of rape and other violent crimes as the product of a single, controllable substance, it makes little sense to single alcohol out.

Rape is a complex phenomenon. Of course, it’s also a gendered one – men are overwhelmingly the main perpetrators and women the main victims. These factors demand a more careful and unflinching look at many issues implicated in rape, including gender discourses and practices.

There’s also a central paradox at the heart of both the columns that started this controversy.

Apparently, although alcohol has certain stable “effects”, these differ by gender. Alcohol renders women more passive and increases their physical vulnerability; it makes men more aggressive and physically powerful. These effects are compounded, Yoffe claims, by biological differences between the sexes.

Both these ideas are grounded in outdated, unproven ideas about gender differences. They reveal much about our historical cultural fantasies of heterosexual submission and domination.

Beyond simplistic approaches

We need to take care when making claims about the “causes” of rape. We also need to avoid simplistic claims about what drugs like alcohol do to people. While alcohol may sometimes be present in rape, there’s no simple, predictable, stable and consistent causal connection.

It’s essential that we face this uncomfortable reality when devising policy responses and educational strategies. If we don’t, policies and other measures for “addressing” the problem of rape may instead exacerbate it.

In particular, measures guided by simplistic assumptions may lead us to neglect other relevant issues, foster complacency, or encourage the belief that rape is a simple problem with simple solutions.

Most troublingly, we risk perpetuating a logic of rape as natural human behaviour. When alcohol “unleashes” men’s “natural” sexual aggression and magnifies women’s “natural” passivity, rape becomes a dynamic embedded in us all.

The ConversationIf we imagine that sexual violence is a part of our essential humanity, any attempt to eradicate it is unlikely to succeed.

Kate Seear, Research Fellow in the Social Studies of Addiction Concepts program at the National Drug Research Institute, Curtin University and Suzanne Fraser, Associate Professor, Curtin University

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