Family law

4.28 The Family Law Act sets out the rights, duties, powers and liabilities of spouses and children, and provides for enforcement of those rights and liabilities as well as the dissolution of marriage.[56] The discussion below canvasses the historical policy behind the Family Law Act as first introduced, as well as the policy underlying the Act as amended since inception.

Historical policy underlying the Family Law Act

4.29 There are several policy strands underpinning the Family Law Act. These include a philosophy of no fault; promoting the best interests of the child; preserving the institution of marriage; promoting reconciliation; and protecting the notion of the family.

No fault philosophy

4.30 One of the main ideological foundations for the introduction of the Family Law Act was the removal of the previous requirement of fault for divorce and a move towards a ‘no-fault’ system for the dissolution of marriage.[57] As consultation conducted by the Senate Standing Committee on Constitutional and Legal Affairs in the early 1970s revealed, the community considered that the previous provisions were costly and protracted, and also involved indignity and humiliation to the parties because of the court’s inquiry into the breakdown of marriage.[58] Consequently, all inquiries as to fault were removed from the legislation.

4.31 The original Family Law Act did not expressly mention family violence, or the need to protect women and children from harm. In the Second Reading Speech of the Family Law Bill 1973 (Cth), the then Attorney-General, Lionel Murphy, said:

I have given a great deal of thought to whether there should be another ground to meet the cases such as where the husband repeatedly comes home drunk and beats up his wife and terrifies the children, if not beating them as well. The marriage may become intolerable for the wife, and yet she cannot physically separate from her husband because there is nowhere she can go … however [an intolerable conduct] ground would of necessity contain an element of fault, and there would have to be an inquiry to satisfy the court that the respondent’s conduct was intolerable. This is what we are trying to avoid.[59]

4.32 Moreover, it appears that the government considered that there would be no need for an ‘intolerable conduct’ ground to address family violence because ‘the petitioner will be able to obtain the relief she wants in other ways’ through an application for an injunction.[60] The conduct that could potentially form the basis for an injunction was said to include molesting or ‘using insulting, indecent or humiliating language’ to or in front of the victim.[61]

4.33 While the removal of fault considerations related to the grounds for dissolution of marriage, the ‘no-fault’ ideology influenced other provisions of the Act, the reasoning of the Family Court in its early days, and its reluctance to entertain an evaluation of conduct during marriage. The Family Law Act in its earliest form did not therefore deal specifically with family violence, except as a ground for an injunction. The Family Court, at its outset, was therefore not conceptually set up as a court that would deal with issues of family violence.

Interests of the children

4.34 From the beginning, the importance of the interests of children has been evident in the Family Law Act.[62] In the Second Reading Speech for the Family Law Bill the then Attorney-General stated that:

In custody matters the court is required by the Bill—as it is by the present Act—to regard the interests of the children as the paramount consideration.[63]

4.35 The original Family Law Act contained a provision that in custodial proceedings, the court was to regard the welfare of the child as the paramount consideration.[64] As outlined below, this policy has since evolved to one that advocates a consideration of the ‘best interests’ of children, reflecting the language of the Convention on the Rights of the Child, ratified by Australia on 17 December 1990.[65]

4.36 In addition, one of the principles that the Family Court has had to take into account since the inception of the Act is ‘the need to protect the rights of children and to promote their welfare’.[66]

Preserving the institution of marriage

4.37 Anotherprinciple that courts exercising family law jurisdiction have been required to consider in decision making since the inception of the Act is ‘the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life’.[67]

4.38 As stated by Dr Anthony Dickey:

The Family Law Act has a variety of functions, many of which are designed to support marriage and family life rather than put an end to them.[68]

4.39 After a consideration of Canadian and United Kingdom divorce legislation, the then Attorney-General stated in the Second Reading Speech for the Family Law Bill that:

whilst none of these laws was an entirely suitable precedent to be followed here, I am in agreement with the two criteria adopted by the English Law Commission for a good divorce law: that it should buttress, rather than undermine, the stability of marriage and, when a marriage has irretrievably broken down, it should enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.[69]

4.40 However, as Professor Rosemary Hunter has noted, the policy of preserving the marital relationship presents some conceptual difficulties when the court is dealing with an issue such as family violence.[70]

Reconciliation

4.41 Closely connected to the goal of preserving the marital relationship is the aim of encouraging parties to reconcile. In the Second Reading Speech for the Family Law Bill, the Attorney–General stated that ‘the Bill recognises the desirability of reconciliation being kept in mind at all stages until the marriage is dissolved’,[71] but decided against a compulsory reconciliation conference because it would be ‘unacceptable to the Australian people’.[72] Since the commencement of the Family Law Act, courts exercising family law jurisdiction have been directed to consider ‘the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children’.[73]

Protection of the notion of family

4.42 One of the fundamental rights codified in the International Covenant on Civil and Political Rights is that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.[74] It was noted in the Second Reading Speech of the Family Law Bill that this statement underlies the provisions of the Family Law Act.[75] Section 43 of the Act provides that one of the overarching principles to be applied by the courts in their deliberations is

the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children.[76]

4.43 While the term ‘family’ is seldom used explicitly in Australian law, it is apparent that the notion of the nuclear family—comprising a mother, father and their children—still underlies the Family Law Act.[77] This focus on the nuclear family may be, in part, due to the heads of Commonwealth legislative power under the Constitution in relation to marriage; divorce and matrimonial causes; and in relation thereto, parental rights, custody and guardianship of infants.[78] However, a growing number of families do not fit that pattern—including some Indigenous families and same-sex couples.

The public/private divide

4.44 The Family Law Act has some ideological foundations in the well established principle of non-intervention in the private sphere of family life. Professor Stephen Parker remarked that:

The idea that we should distinguish between public and private spheres of life has been a central one in liberal political philosophy since the seventeenth century, although the roots of the idea can be traced back to Aristotle. In classical liberalism, the notion of a private sphere was a crucial part of the belief in limited government. There were certain parts of civil society in which the state had no business. And at the epicentre of the private sphere was the family; more specifically, the patriarchal family.[79]

4.45 The idea that the family is a ‘private’ space is a continuing theme in law—and especially family law.[80] As noted by Parker, the principle of non-intrusion into family life has its origins as far back as ancient Greek philosophy and the liberal philosophers developed the concept of a ‘private sphere’ in the 17th century.[81] Family law disputes are ‘private’ in the sense that they are disputes between two parties, and the state generally has no role in these disputes—apart from enacting the legislation that establishes the framework pursuant to which the disputes are to be resolved.[82]

4.46 This idea of family law as private is evident when the first Family Law Bill was introduced by the then Attorney-General:

It does not seem right to me that divorce itself should be an occasion for judicial intrusion. It may be different in custody, maintenance and property disputes, but even in those the parties should be encouraged to resolve their differences themselves.[83]

Policy behind the Family Law Act as amended since inception

4.47 Despite a changing social context, many of the historical policies underpinning the Family Law Act still influence how it is applied. The principles in s 43 of the Act—noted above—still apply. In addition, a new principle was introduced by the Family Law Reform Act 1995 (Cth) requiring consideration of the need to ensure safety from family violence,[84] reflecting a growing understanding of the detrimental impact of violence which found expression in the Convention on the Elimination of All Forms of Discrimination Against Women and the Declaration on the Elimination of Violence against Women.[85]

4.48 The Family Law Act does not have an objects clause specifying its overarching objects. Instead, particular provisions set out specific objects and principles in relation to: obligations to inform people about family services based outside the courts and about the court’s processes and services;[86] the court’s powers in relation to family services both in and outside of court;[87] children;[88] family violence;[89] orders and injunctions;[90] and superannuation interests.[91]

4.49 Of particular importance is the objects and principles provision in relation to children.[92] The paramount principle in children’s matters is that of the bestinterests of the child.[93] To facilitate this, the following objects were introduced in 2006:

(a) ensuring that children have the benefit of both parents having a meaningful involvement in their lives; and

(b) protecting children from physical or psychological harm or being subjected to, or exposed to abuse, neglect or family violence.[94]

4.50 Importantly, the objects provision stresses ‘meaningful’ relationships, suggesting that the quality of time parents spend with their children is a significant factor.[95]

4.51 The primary considerations listed in pt VII reflect these objects.[96] In determining what is in a child’s best interests, the court must have regard to the following primary considerations:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.[97]

4.52 These objects reflect, on the one hand, the increased emphasis since 1996 on protecting families from violence and, on the other, the move towards shared parenting in 2006. The shared parenting amendments[98] were introduced following the 2003 Every Picture Tells A Story inquiry and the Report from the House of Representatives Standing Committee on Legal and Constitutional Affairs.[99]

4.53 The 2006 reforms sought to reflect the changing patterns of parenting, the transition of traditional roles and the fragmentation of family structures.[100] The amendments were supported by research from psychologists indicating that children benefit from a meaningful relationship with both parents.

4.54 There has been considerable controversy and debate over the issue of shared parenting. As noted in Chapter 1, in 2009, the Australian Institute of Family Studies completed an evaluation of the reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).[101] The review by Professor Richard Chisholm, former Justice of the Family Court of Australia, of the practices, procedures and laws that apply in the federal family law courts in the context of family violence, also considered the impact of these reforms.[102] A number of submissions in this Inquiry were also critical of the reforms.[103]

4.55 Another significant change to principles introduced by the 2006 reforms was recognition of the importance of cultural heritage,[104] and indicating what this means for Indigenous children. For example, s 60B(3) of the Family Law Act provides that the right of an ‘Aboriginal or Torres Strait Islander’ child to enjoy culture includes the right to maintain connection with that culture and to have the support and opportunity to explore and develop a positive appreciation of that culture.

[56] A Dickey, Family Law (5th ed, 2007), 43.

[57] L Young and G Monahan, Family Law in Australia (7th ed, 2009), 29.

[58] Commonwealth, Parliamentary Debates, Senate, 3 April 1974, 640 (L Murphy—Attorney-General), 641.

[59] Commonwealth, Parliamentary Debates, Senate, 13 December 1973, 2827 (L Murphy—Attorney-General), 2829. See also Commonwealth, Parliamentary Debates, Senate, 3 April 1974, 640
(L Murphy—Attorney-General), 641.

[60] Commonwealth, Parliamentary Debates, Senate, 13 December 1973, 2827 (L Murphy—Attorney-General), 2829.

[61] Commonwealth, Parliamentary Debates, Senate, 3 April 1974, 640 (L Murphy—Attorney-General), 641.

[62] Ibid, 642.

[63] Ibid.

[64]Family Law Act 1975 (Cth) as made in 1975 s 64(1)(a).

[65] L Young and G Monahan, Family Law in Australia (7th ed, 2009), [7.5]. The Convention on the Rights of the Child was particularly significant in shaping reforms to pt VII of the Family Law Act in the Family Law Reform Act 1995 (Cth). See Ch 2.

[66]Family Law Act 1975 (Cth) s 43(1)(c). The protection of children reflects art 24 of the International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976). Although Australia did not ratify the covenant until 1980, the object of protecting children is consistent with the ICCPR and also art 25(2) of the earlier convention, Universal Declaration of Human Rights, 10 December 1948, (entered into force generally on 10 December 1948). See Ch 2.

[67]Family Law Act 1975 (Cth) s 43(1)(a).

[68] A Dickey, Family Law (5th ed, 2007), 43.

[69] Commonwealth, Parliamentary Debates, Senate, 13 December 1973, 2827 (L Murphy—Attorney-General), 2828.

[70] R Hunter, ‘Narratives of Domestic Violence’ (2006) 28 Sydney Law Review 733, 760.

[71] Commonwealth, Parliamentary Debates, Senate, 13 December 1973, 2827 (L Murphy—Attorney-General), 2829.

[72] Ibid.

[73]Family Law Act 1975 (Cth) s 43(1)(d).

[74]International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976), art 23.

[75] Commonwealth, Parliamentary Debates, Senate, 3 April 1974, 640 (L Murphy—Attorney-General), 641. Australia did not, however, ratify the ICCPR until 1980.

[76]Family Law Act 1975 (Cth) s 43(1)(b).

[77] B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 145.

[78]Australian Constitution s 51(xxi), (xxii). The constitutional framework is discussed in Ch 2.

[79] S Parker, ‘Rights and Utility in Anglo-Australian Family Law’ (1992) 55 Modern Law Review 311,
325–326.

[80] See eg, T Altobelli, Family Law in Australia: Principles and Practice (2003), 50; M Thornton, ‘The Cartography of Public and Private’ in M Thornton (ed) Public and Private: Feminist Legal Debates (1995) 2; and R Graycar and J Morgan, The Hidden Gender of Law (2nd ed, 2002), ch 2 and references cited throughout.

[81] B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 157, (citations omitted). See also Ibid, 159 for a synthesis of feminist critiques of the public/private dichotomy.

[82] D Higgins and R Kaspiew, ‘“Mind the Gap…”: Protecting Children in Family Law Cases’ (2008) 22 Australian Journal of Family Law 235, 244. See also International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976), art 17, set out in Ch 2.

[83] Commonwealth of Australia, Parliamentary Debates, Senate, 1 August 1974, 758 (L Murphy—Attorney General), 760.

[84]Family Law Act 1975 (Cth) s 43(1)(ca).

[85]Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, [1983] ATS 9, (entered into force generally on 3 September 1981); Declaration on the Elimination of Violence against Women 20 December 1993, UN GAOR, A/RES/48/104, (entered into force generally on 23 February 1994).

[86]Family Law Act 1975 (Cth) s 12A.

[87] Ibid s 13A.

[88] Ibid s 60B.

[89] Ibid s 68N.

[90] Ibid s 90AA.

[91] Ibid s 90MA. The Family Law Act does not codify the objects and principles behind the provisions relating to property and spousal maintenance.

[92] Ibid s 60B.

[93] Ibid s 60CA.

[94] Ibid s 60B.

[95] B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 242.

[96]Family Law Act 1975 (Cth), s 60CC.

[97] Ibid s 60CC(2)(a), (b).

[98] Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).

[99] House of Representatives Standing Committee on Family and Community Affairs—Parliament of Australia, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003); House of Representatives Standing Committee on Legal and Constitutional Affairs—Parliament of Australia, Report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (2005).

[100] House of Representatives Standing Committee on Family and Community Affairs—Parliament of Australia, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003), 12–13.

[101] Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009).

[102] Australian Government Attorney-General’s Department, Family Courts Violence Review (2009) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyCourtsViolenceReview> at 28 January 2010.

[103] For example: Confidential, Submission FV 52, 28 May 2010; Confidential, Submission FV 156, 24 June 2010.

[104]Family Law Act 1975 (Cth) s 60B(2)(e).