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The Perils and Pitfalls of Formal Equality in Australian Family Law Reform

Published online by Cambridge University Press:  01 January 2025

Belinda Fehlberg ,
Lisa Sarmas  and
Jenny Morgan
Belinda Fehlberg
Affiliation:
Melbourne Law School, University of Melbourne
Lisa Sarmas
Affiliation:
Melbourne Law School, University of Melbourne
Jenny Morgan
Affiliation:
Melbourne Law School, University of Melbourne
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Abstract

In this paper, we identify the influence of formal equality—and more specifically, formal gender equality (that is, treating men and women the same)—in central areas of major Australian family law reform over the past 20 years. Given the influence of formal equality and our concerns regarding this trend, we consider whether equality-based arguments should be abandoned entirely, at least in the family law context, and explore alternative approaches that could reframe the debate.

Type
Article
Information
Federal Law Review , Volume 46 , Issue 3 , September 2018 , pp. 367 - 396
Copyright
Copyright © 2018 The Australian National University

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Footnotes

*

The authors would like to thank Juliet Behrens who kindly read a draft of the article, Bruce Smyth and Heather Crawford who assisted with some data queries, the two anonymous reviewers who provided detailed comments, and Ron Levy of the Federal Law Review for his help throughout the submission process.

References

1 George Brandis, ‘Transforming the Family Law System’ (Media Release, 9 May 2018) <https://www.ag.gov.au/Publications/Budgets/Budget2017-18/Pages/Media-releases/Transforming-the-family-law-system.aspx>.

2 Brandis, George, Terms of Reference: Review of the Family Law System (27 September 2017) Australian Law Reform Commission <https://www.alrc.gov.au/inquiries/family-law-system/terms-reference>. An issues paper was released in March 2018: Australian Law Reform Commission, Review of the Family Law System, Issues Paper No 48 (2018).Google Scholar

3 Brandis, Terms of Reference: Review of the Family Law System, above n 2.

4 Brandis, ‘Transforming the Family Law System’, above n 1.

5 Family Law Council, Submission to Property and Family Law: Options for Change, July 1999 <https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/Submission%20on%20Property%20and%20Family%20Law%20-%20Options%20for%20Change.pdf>; Harrison, Margaret, ‘Matrimonial Property Reform’ (1992) 31 Family Matters 18Google Scholar. Spousal maintenance law has not been the subject of reform proposals since the late 1980s: Australian Law Reform Commission, Report on Matrimonial Property, Report No 39 (1987).

6 Family Law Act 1975 (Cth) (‘FLA’) ss 79(2), 90SM(2). This is in contrast to a shift away from discretion towards rules in the areas of parenting and child support. Spousal maintenance law also operates on the basis of broad judicial discretion to make orders that are ‘proper’: at ss 74(1), 90SE(1).

7 There is much research establishing these points. In Australia, recent examples include: Rae Kaspiew et al, ‘Evaluation of the 2012 Family Violence Amendments: Synthesis Report’ (Report, Australian Institute of Family Studies, October 2015); Lixia Qu et al, ‘Post-Separation Parenting, Property and Relationship Dynamics after Five Years’ (Report, Australian Institute of Family Studies, 2014); de Vaus, Davis et al, ‘The Economic Consequences of Divorce in Australia’ (2014) 28 International Journal of Law, Policy and the Family 26.CrossRefGoogle Scholar

8 While formal equality has underpinned strong encouragement of private agreement in other areas of Australian family law over the past two decades, including in the areas of parenting and child support, a broader discussion is beyond the scope of this paper.

9 Halley, Janet and Rittich, Kerry, ‘Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism’ (2010) 58 The American Journal of Comparative Law 753, 761.CrossRefGoogle Scholar

10 Maintenance is not a focus of our paper, as in Australia it has not been the subject of law and policy reform interest since the 1980s (Family Law Council, above n 5), and research has found that its payment is ‘rare, minimal and brief’: Juliet Behrens and Bruce Smyth, ‘Spousal Support in Australia: A Study of Incidence and Attitudes’ (Working Paper No 16, Australian Institute of Family Studies, 1999) 8. While our focus in this paper in on reform activity, lack of interest in—and payment of—maintenance is highly consistent with formal equality influences. Specifically, Behrens and Smyth's analysis (drawing on Australian Institute of Family Studies data involving telephone interviews conducted in late 1997 with a random national sample of 650 Australians who had divorced between 1987 and 1997) is the most recent comprehensive Australian research. They found spousal maintenance occurred in less than 7 per cent of divorces, typically lasted 2 years, and averaged about $128 per week (or $6640 per annum). A further 10 per cent of respondents said they had paid or received spousal maintenance solely through a larger share of the assets at property division. Cf the Canadian Spousal Support Advisory Guidelines, developed by Carol Rogerson and Rollie Thompson with funding from the Canadian Department of Justice to try to make orders for spousal support more predictable and consistent: Rogerson, Carol and Thompson, Rollie, Spousal Support Advisory Guidelines (10 June 2018) Department of Justice, Government of Canada <http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html>.Google Scholar

11 Jane Mossman, Mary, ‘Child Support or Support for Children? Re-Thinking “Public” and “Private” in Family Law’ (1997) 46 University of New Brunswick Law Journal 63Google Scholar. And see also Buchanan, Ruth, ‘Deadbeat Dads in Global Perspective: A Comment on Mary Jane Mossman’ (1997) 46 University of New Brunswick Law Journal 89.Google Scholar

12 Hunter, Rosemary, ‘Rethinking Equality Projects in Law’ in Hunter, Rosemary (ed), Rethinking Equality Projects in Law (Hart Publishing, 2008).Google Scholar

13 Graycar, Reg and Morgan, Jenny, ‘Examining Understandings of Equality: One Step Forward, Two Steps Back?’ (2004) 20 Australian Feminist Law Journal 23CrossRefGoogle Scholar; Hunter, Rosemary, ‘Introduction: Feminism and Equality’ in Hunter, Rosemary (ed), Rethinking Equality Projects in Law (Hart Publishing, 2008) 1Google Scholar; Sarmas, Lisa, ‘A Step in the Wrong Direction: The Emergence of Gender “Neutrality” in the Equitable Presumption of Advancement’ (1994) 19 Melbourne University Law Review 758Google Scholar.

14 McKinnon, Catharine A, Toward a Feminist Theory of the State (Harvard University Press, 1989)Google Scholar; McKinnon, Catharine A, ‘Substantive Equality: A Perspective’ (2011) 96 Minnesota Law Review 1Google Scholar; Graycar and Morgan, ‘Examining Understandings of Equality: One Step Forward, Two Steps Back?’, above n 13; Hunter, ‘Introduction: Feminism and Equality’, above n 13, 1.

15 Armstrong, Susan M, ‘Is Feminist Law Reform Flawed? Abstentionists and Sceptics’ (2004) 20 Australian Feminist Law Journal 43CrossRefGoogle Scholar; Boyd, Susan B, ‘Is Equality Enough? Father's Rights and Women's Rights Advocacy’ in Hunter, Rosemary (ed) Rethinking Equality Projects in Law (Hart Publishing, 2008) 59Google Scholar; Graycar, Reg and Morgan, Jenny, ‘Law Reform: What's In It for Women?’ (2005) 23(2) Windsor Yearbook of Access to Justice 393Google Scholar; Hunter, ‘Introduction: Feminism and Equality’, above n 13.

16 Graycar and Morgan, ‘Law Reform: What's In It for Women?’, above n 15, 393.

17 Australian Human Rights Commission, Face the Facts: Gender Equality 2018 <https://www.humanrights.gov.au/education/face-facts/face-facts-gender-equality>.

18 Australian Government, Workplace Gender Equality Agency, Australia's Gender Pay Gap Statistics (February 2018) <https://www.wgea.gov.au/sites/default/files/gender-pay-gap-statistics.pdf>.

19 Ibid 2.

20 Hayes, Alan, Weston, Ruth and Qu, Lixia, Australian Families Then and Now: 1980 to 2010 (Research Summary, Australian Institute of Family Studies, 2010)Google Scholar.

21 Baxter, Janeen and Hewitt, Belinda, ‘Negotiating Domestic Labor: Women's Earnings and Housework Time in Australia’ (2013) 19 Feminist Economics 29, 49.Google Scholar

22 Australian Institute of Family Studies, Australian Government, ‘Mothers Still Do the Lion's Share of Housework’ (Media Release, 9 May 2016) <https://aifs.gov.au/media-releases/mothers-still-do-lions-share-housework>; Rush, Penelope, ‘Current Attitudes and Practices of Australian Parents’ in Dad and Partner Pay: Implications for Policy-Makers and Practitioners (Child Family Community Australia Paper No 12, Australian Institute of Family Studies, February 2013)Google Scholar.

23 Baxter, Jennifer, Stay at Home Fathers in Australia (Research Report, Australian Institute of Family Studies, April 2018) 3.1Google Scholar.

24 Ibid.

25 Metcalf Metcalf, ‘Neoliberalism: The Idea that Swallowed the World’, The Guardian (online), 18 August 2017 <https://www.theguardian.com/news/2017/aug/18/neoliberalism-the-idea-that-changed-the-world>. See also Monbiot Monbiot, ‘Neoliberalism—The Ideology at the Root of All Our Problems’, The Guardian (online), 15 April 2016 <https://www.theguardian.com/books/2016/apr/15/neoliberalism-ideology-problem-george-monbiot>. In the UK family law context, see Barlow, Anne et al, Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Palgrave, 2017)CrossRefGoogle Scholar.

26 Albertson Fineman, Martha, ‘Equality, Autonomy and the Vulnerable Subject in Law and Politics’ in Grear, Anna and Albertson Fineman, Martha (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate, 2013) 13.Google Scholar

27 Boyd, Susan B and Sheehy, Elizabeth, ‘Men's Groups: Challenging Feminism’ (2016) 28 Canadian Journal of Women and the Law 5, 8.Google Scholar

28 Graycar and Morgan, ‘Examining Understandings of Equality: One Step Forward, Two Steps Back?’, above n 13, 23.

29 Ibid 25.

30 In the context of family violence reform in the UK, see Kaganas, Felicity, ‘Domestic Violence, Men's Groups and the Equivalence Argument’ in Diduck, Alison and O’Donovan, Katherine (eds), Feminist Perspectives on Family Law (Routledge Cavendish, 2006)Google Scholar.

31 The High Court emphasised in 1979 that no principle or presumption operated ‘that a young child, especially a young female child, is best left in the custody of her mother’: Gronow v Gronow (1979) 144 CLR 513, 526 [7] (Mason and Wilson JJ), discussed in Graycar and Morgan, ‘Examining Understandings of Equality: One Step Forward, Two Steps Back?’, above n 13.

32 FLA s 60CA.

33 Ibid s 61DA: see Section III(A)(1) above.

34 FLA s 65DAA: see Section III(A)(1) above.

35 See, eg, Fehlberg, Belinda, Millward, Christine and Campo, Monica, ‘Shared Post-Separation Parenting in 2009: An Empirical Snapshot’ (2009) 23 Australian Journal of Family Law 247Google Scholar; Laing, Lesley, No Way to Live: Women's Experiences of Negotiating the Family Law System in the Context of Domestic Violence (University of Sydney & Benevolent Society, 2010).Google Scholar

36 See further Fehlberg, Belinda et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015) 179–82.Google Scholar

37 See, eg, Fehlberg, Millward and Campo, above n 35, who (based on their study of 60 parents separating after Australia's 2006 shared parenting amendments (discussed at Section III(A) of this paper)) concluded that: ‘mothers usually remained the main managers and facilitators in relation to children's lives, even in our equal shared care cases’: at 263.

38 See, eg, Rathus, Zoe, ‘Of “Hoods” and “Ships” and Citizens: The Contradictions Confronting Mothers in the New Post-Separation Family’ (2010) 19 Griffith Law Review 438.CrossRefGoogle Scholar

39 FLA s 60B(2)(a). This aspect of s 60B has not changed since 2006.

40 Behrens, Juliet, ‘Shared Parenting: Possibilities … and Realities’ (1996) 21 Alternative Law Journal 213Google Scholar.

41 Kaye, Miranda and Tolmie, Julia, ‘Discoursing Dads: The Rhetorical Devices of the Fathers’ Rights Groups’ (1998) 22 Melbourne University Law Review 162.Google Scholar

42 Rhoades, Helen, ‘Yearning for Law: Fathers’ Groups and Family Law Reform in Australia’ in Collier, Richard and Sheldon, Sally (eds), Fathers’ Rights Activism and Law Reform in Comparative Perspective (Hart Publishing, 2006) 125.Google Scholar See also Parker, Anna, Shared Parenting and Experimental Family Law Reform: Section 65DAA of the Family Law Act 1975 (SJD Thesis, Monash University, 2015).Google Scholar

43 Rhoades, Helen, Graycar, Reg and Harrison, Margaret, The Family Law Reform Act 1995: The First Three Years (University of Sydney and Family Court of Australia, 2000) 1Google Scholar; Rhoades, above n 42, 125.

44 Rhoades, Graycar and Harrison, above n 43, 5; Kaspiew, Rae, ‘Violence in Contested Children's Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112Google Scholar; Carson, Rachel, Supervised Contact: A Study of Current Trends and Emerging Tensions Since the Introduction of the Family Law Reform Act 1995 (Cth) (PhD Thesis, University of Melbourne, 2011)Google Scholar.

45 Eg through the introduction of a definition of ‘family violence’ (s 4), and amendment of the best interests checklist (then s 68F; now s 60CC) to require courts to consider the need to protect the child from physical or psychological harm caused by being subjected or exposed (directly or indirectly) to ‘abuse, ill-treatment, violence or other behaviour’ (then s 68F(2)(g)).

46 Specifically, s 60B, as introduced in 1996, referred to several principles to inform the interpretation of Part VII, namely: the right of children to know and be cared by ‘both of their parents’, the right to spend regular time and communicate regularly with ‘both of their parents’ and that parents ‘share’ their parental duties and ‘should agree’ about the future parenting of their children.

47 See above n 44.

48 Graycar, Reg, ‘Equal Rights Versus Fathers’ Rights: The Child Custody Debate in Australia’ in Smart, Carol and Sevenhuijsen, Selma, Child Custody and the Politics of Gender (Routledge, 1989) 158Google Scholar; Kaye, Miranda and Tolmie, Julia, ‘Fathers’ Rights Groups in Australia and Their Engagement with Issues in Family Law’ (1998) 12 Australian Journal of Family Law 1Google Scholar; Kaye and Tolmie, ‘Discoursing Dads: The Rhetorical Devices of the Fathers’ Rights Groups’, above n 41; Rhoades, above n 42, 125–6. See also Parker, above n 42.

49 Hunter, Rosemary, ‘Decades of Panic’ (2005) 10 Griffith Review 53Google Scholar.

50 Moloney, Lawrie, Weston, Ruth and Hayes, Alan, ‘Key Social Issues in the Development of Australian Family Law Research and Its Impact on Policy and Practice’ (2013) 19 Journal of Family Studies 110CrossRefGoogle Scholar; Smyth, Bruce et al, ‘Legislating for Shared-Time Parenting after Parental Separation: Insights from Australia?’ (2014) 77 Journal of Law and Contemporary Problems 109Google Scholar.

51 Graycar, above n 48, 171 citing Smart, Carol, ‘Feminism and Law: Some Problems of Analysis and Strategy’ (1986) 14 International Journal of the Sociology of Law 419Google Scholar and Sevenhuijsen, Selma, ‘Fatherhood and the Political Theory of Rights: Theoretical Perspectives of Feminism’ (1986) 14 International Journal of the Sociology of Law 329Google Scholar.

52 Hunter, ‘Decades of Panic’, above n 49, 59. See also Parker, above n 42.

53 Hunter, ‘Decades of Panic’, above n 49, 61.

54 Ibid. Writing in 2004 of similar shifts in England, Carol Smart emphasised the significance of Bob Geldof as a key figure, along with the use by the fathers’ rights movement of ‘more high profile tactics more akin to those used in Australia and New Zealand’ in the push towards formal equality in post-separation parenting: Smart, Carol, ‘Equal Shares: Rights for Fathers or Recognition for Children?’ (2004) 24 Critical Social Policy 484, 484CrossRefGoogle Scholar.

55 Rae Kaspiew et al, ‘Evaluation of the 2006 Family Law Reforms’ (Report, Australian Institute of Family Studies, December 2009) 132.

56 See eg Bruce Smyth, Catherine Caruana and Anna Ferro, ‘Fifty/Fifty Care’ in Bruce Smyth (ed), ‘Parent-Child Contact and Post-Separation Parenting Arrangements’ (Research Report No 9, Australian Institute of Family Studies, June 2004) 17–30.

57 Kaspiew et al, ‘Evaluation of the 2006 Family Law Reforms’, above n 55, 119.

58 Ibid 130–1.

59 Ibid 166: ‘Parents with greater sharing of care time were by no means immune from safety concerns: 16–20% expressed such concerns. These percentages are similar to that derived for mothers with the majority of care time (19%)’.

60 Smyth, Caruana and Ferro, above n 56.

61 See especially, Kaspiew et al, ‘Evaluation of the 2006 Family Law Reforms’, above n 55; Richard Chisholm, ‘Family Courts Violence Review’ (Report, Family Court of Australia, 27 November 2009). On the position of mothers post-2006, see further Zoe Rathus, above n 38.

62 See especially, Family Violence Committee, ‘Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues’ (Report, Family Law Council, December 2009); Chisholm, above n 61.

63 Including providing that the need to ensure ‘protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’ is an object of FLA Part VII (s 60B(1)(b)) and a ‘primary consideration’ when determining what is in children's best interests (s 60CC(2)(b)), and that the presumption of equal shared responsibility is not applicable where there are reasonable grounds to believe that a person has engaged in family violence or child abuse (s 61DA(2)).

64 See further Renata Alexander, ‘Family Violence in Parenting Cases in Australia under the Family Law Act 1975 (Cth): The Journey So Far—Where are We Now and Are We There Yet?’ (2015) 29 International Journal of Law, Policy and the Family 313, 320–2. Anecdotal evidence suggests that as a result of this increasing knowledge, mothers with ex-partners who have perpetrated family violence and/or abuse receive mixed messages across the state-federal divide: they are expected to act protectively in the state child protection system, but to facilitate ‘meaningful relationships’ between their child(ren) and the father in the federal family law context.

65 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).

66 FLA s 60CC(2A), as inserted by Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), sch 1 item 17. Other amendments included a new definition of family violence (s 4AB, as inserted by Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), sch 1 item 8), extending the definition of child abuse to subjecting or exposing a child to family violence that leads to significant psychological harm for the child (s 4 (abuse), as inserted by Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), sch 1 item 1), and amendments aimed at improving the information available to courts about family violence and abuse in the cases before them. See further Alexander, above n 64.

67 See further Kaspiew et al, ‘Evaluation of the 2012 Family Violence Amendments: Synthesis Report’, above n 7, 79.

68 See further ibid xii. See also Alexander, above n 64; Easteal, Patricia and Grey, Dimian, ‘Risk of Harm to Children from Exposure to Family Violence: Looking at How It is Understood and Considered by the Judiciary’ (2013) 27 Australian Journal of Family Law 59Google Scholar; Sifris, Adiva and Parker, Anna, ‘Family Violence and Family Law: Where to Now?’ (2014) 4 Family Law Review 3.Google Scholar

69 See Section II, above. The research demonstrates incremental shifts in responsibility for family work: see, eg, Craig, Lyn, Mullan, Killian and Blaxland, Megan, ‘Parenthood, Policy and Work-Family Time in Australia 1992–2006’ (2010) 24 Work, Employment and Society 27CrossRefGoogle Scholar. See also, relying on 2016 census data, ABS, General Community Profile, Cat No 2001.0 (2017), Table G20: Unpaid Domestic Work by Age by Sex, <http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/communityprofile/036>. This shows, for instance, that 194,526 men between the ages of 25–64 did 30 hours or more unpaid work, compared to 1,030,228 women in the same age bracket.

70 The most recent research, based on new child support cases, suggests around 16.5 per cent in 2015: Bruce M Smyth and Richard Chisholm, ‘Shared-Time Parenting after Separation in Australia: Precursors, Prevalence and Postreform Patterns’ (2017) 55 Family Court Review 586, 593.

71 Kaspiew et al, ‘Evaluation of the 2006 Family Law Reforms’, above n 55, 118.

72 Kaspiew et al, ‘Evaluation of the 2012 Family Violence Amendments: Experiences of Separated Parents Report’, above n 7, Figure 2.3, 16.

73 Parker, above n 42, 149.

74 Fehlberg, Millward and Campo, above n 35, 263. The authors observed, in relation to their qualitative analysis of interviews with 60 separated parents, that this was so ‘even in our equal shared care cases’.

75 More broadly, child support raises complex legal and policy questions about allocation of responsibility for children's financial support after parental separation by the child's parents versus the state (through government payments to families, and thus ultimately from taxpayers and the wider community). See, eg, in the UK, Sally Sheldon, ‘Unwilling Fathers and Abortion: Terminating Men's Child Support Obligations?’ (2003) 66 Modern Law Review 175, and in Canada: Judy Fudge, ‘The Privatization of the Costs of Social Reproduction: Some Recent Charter Cases’ [1989] Canadian Journal of Women and te Law 246; Mossman, above n 11. That said, payment of child support can play an important role in alleviating post-separation poverty of women and their dependent children, see Christine Skinner, Cook, Kay and Sinclair, Sarah, ‘The Potential of Child Support to Reduce Lone Mother Poverty: Comparing Population Survey Data in Australia and the UK’ (2017) 25 Journal of Poverty and Social Justice 79.Google Scholar

76 Child Support (Assessment) Act 1989 (Cth) s 3(1).

77 Qu et al, above n 7, xiii–xix.

78 Ibid 8, Table 2.4: fathers’ median personal income was $52 200 per annum, compared to $35 000 for mothers.

79 Child Support Consultative Group, Child Support: Formula for Australia (Report, Department of Social Security, May 1988).

80 See further Fehlberg et al, above n 36, 441, fn 160.

81 Ibid 426.

82 Standing Committee on Family and Community Affairs, House of Representatives (Cth), Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003).

83 Ministerial Taskforce on Child Support, In the Best Interests of Children—Reforming the Child Support Scheme: Report of the Ministerial Taskforce on Child Support (Commonwealth of Australia, 2005).

84 Cook, Kay and Natalier, Kristin, ‘The Gendered Framing of Australia's Child Support Reforms’ (2013) 27 International Journal of Law, Policy and the Family 28CrossRefGoogle Scholar.

85 Ministerial Taskforce on Child Support, In the Best Interests of Children—Reforming the Child Support Scheme: Summary Report and Recommendations of the Ministerial Taskforce on Child Support (Commonwealth of Australia, 2005) 1.

86 Senate Standing Committee on Community Affairs, Parliament of Australia, Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Bill 2006 [Provisions], (2006).

87 Ministerial Taskforce on Child Support, above n 85, 2.

88 See also Michele Haynes et al, ‘Parenthood and Employment Outcomes: The Effect of a Birth Transition on Men's and Women's Employment Hours’, (Paper presented at HILDA Survey Research Conference, Melbourne, 3–4 October 2013). In New Zealand, see Isabelle Sin, Kabir Dasgupta and Gail Pacheco, ‘Parenthood and Labour Market Outcomes’ (Report, New Zealand Ministry for Women, May 2018).

89 Fehlberg, Millward and Campo, above n 35, 263. See also Section III(A)(3).

90 Child Support Consultative Group, Child Support: Formula for Australia (Report, Department of Social Security, May 1988).

91 Edwards, Meredith, Social Policy, Public Policy: From Problem to Practice (Allen and Unwin, 2001) 59Google Scholar.

92 Some of the flavour of the progressive social policy context at the time is conveyed by chapter headings, and indeed the book title, of this publication from 1983: Baldock, Cora V and Cass, Bettina (eds), Women, Social Welfare and the State in Australia (Allen and Unwin, 1983)Google Scholar. The chapters included ‘Public Policies and the Paid Work of Women’; ‘Redistribution to Children and to Mothers; a History of Child Endowment and Family Allowances’; ‘Women as Welfare Recipients: Women, Poverty and the State’. The role of the state in alleviating poverty is palpable, and palpably missing in 2018.

93 See Section II. See also Jennifer Baxter, ‘Families Working Together: Getting the Balance Right’ (Australian Family Trends Fact Sheet, No 2, May 2013).

94 De Vaus et al, above n 7.

95 Before the most recent round of amendments in 2006–08, changes included reducing the child support liabilities of payers with at least 30 per cent shared care and/or other dependent children, reducing the payer's exempt income amount and allowing payers to make non-cash non-agency payments in a wider range of circumstances and against the payee's wishes. The main change going against the interests of payers was the introduction of a minimum liability in 1999. This was of very limited benefit to payees and was really about reinforcing the principle of parental financial responsibility. See also Funder, Kate, ‘Changes in Child Support’ (1997) 48 Family Matters 36Google Scholar; Young, Lisa, ‘Reforming Child Support Laws: Breaking the Cycle’ (2005) 30 Alternative Law Journal 29CrossRefGoogle Scholar.

96 In Canada, see Fudge, above n 75.

97 Senate Standing Committee on Community Affairs, Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Bill 2006 [Provisions], above n 86, 12.

98 Ibid 35. For worked examples (prepared by the NCSMC) showing how the formula would apply (math-wise) before and after the changes see: Fehlberg, Belinda and Behrens, Juliet, Australian Family Law: The Contemporary Context (Oxford University Press, 1st ed, 2008) 429–30Google Scholar.

99 Introduced by Howard federal government from 1 July 2006, and requiring parents applying for Parenting Payment (a government income support payment for low income parents including sole parents) to seek part time work of at least 15 hours per week once their youngest child turns six (if partnered) or eight (if single). See also Summerfield, Tracey et al, ‘Child Support and Welfare to Work Reforms: The Economic Consequences for Single-Parent Families’ (2010) 84 Family Matters 68Google Scholar.

100 NCSMC Inc, Submission No 11 to the Senate Standing Committee on Community Affairs, Inquiry into Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Bill 2006, 22 September 2006, 6. .

101 Department of Families, Housing, Community Services and Indigenous Affairs, ‘Report on the Population Impact of the New Child Support Formula’ (Report, Department of Families, Housing, Community Services and Indigenous Affairs, 7 August 2008). See also Smyth, Bruce and Henman, Paul, ‘The Distributional and Financial Impacts of the New Australian Child Support Scheme: A “Before and Day-After Reform” Comparison of Assessed Liability’ (2010) 16 Journal of Family Studies 5, 26–7CrossRefGoogle Scholar.

102 Vu Son, Rodgers, Bryan and Smyth, Bruce, ‘The Impact of Child Support Changes on the Financial Living Standards of Separated Families in Australia’ (2014) 28 Australian Journal of Family Law 193, 229Google Scholar.

103 Smyth, Bruce et al, ‘The Australian Child Support Reforms: A Critical Evaluation’ (2015) 50 Australian Journal of Social Issues 217CrossRefGoogle Scholar.

104 Defined as indirect costs of spending time with children, such as ‘provision of appropriate accommodation and bedding’: Millward, Christine and Fehlberg, Belinda, ‘Recognising the Costs of Contact: Infrastructure Costs, “Regular Care” and Australia's New Child Support Formula’ (2013) 27 Australian Journal of Family Law 1, 4.Google Scholar

105 Ibid 22–3.

106 Ibid 23.

107 FLA ss 90G(1)(b) (spouses), 90UJ(1)(b) (de facto partners).

108 FLA ss 90K (spouses), 90UM (de facto partners).

109 Frank Stilwell and David Primrose, ‘The Distribution of Wealth in Australia’ in Catalyst (ed), Equality Speaks: Challenges for a Fair Society (2009) 85, extracted in: Frank Stilwell and David Primrose, The distribution of wealth in Australia (November 2009) Evatt Foundation <http://evatt.org.au/papers/distribution-wealth-australia.html>; Australian Bureau of Statistics, Cat No 4125.0—Gender Indicators, Australia (Summary of Key Series, Australian Bureau of Statistics, 24 February 2015) <http://www.abs.gov.au/AUSSTATS/[email protected]/DetailsPage/4125.0Feb%202015?OpenDocument>. In the family law context, see Turnbull, Christopher, ‘Family Property Law Settlements: An Exploratory Quantitative Analysis’ (2018) 7 Family Law Review 215, 225–6Google Scholar.

110 For the second reading speech for the 2000 legislation, see Commonwealth, Parliamentary Debates, House of Representatives, 31 August 1999, 19807 (Daryl Williams, Attorney General). For an empirical analysis of the early impacts of the legislation, see Fehlberg, Belinda and Smyth, Bruce, ‘Binding Pre-Nuptial Agreements in Australia: The First Year’ (2002) 16 International Journal of Law, Policy and the Family 127CrossRefGoogle Scholar. To date, there has been no further empirical work.

111 Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Provisions of the Family Law Amendment Bill 1999 (1999) made no mention of the possibility that the Family Court might be reluctant to enforce agreements. Rather, the concern expressed in submissions was that unfair agreements would be enforced because the grounds for setting aside agreements were too narrow: 3.34–3.46.

112 See, eg, Black & Black [2008] FamCAFC 7 (Faulks DCJ, Kay and Penny JJ) (Full Court held an agreement was not binding because the matters on which the parties received independent legal advice had been set out in the annexed lawyers’ certificates rather than in the agreement itself as required by section 90G(1)(b) at that time) and Ruane v Bachmann-Ruane [2009] FamCA 1101 (Cronin J held that an agreement was not binding as one party received independent legal advice from a lawyer not admitted to practice in Australia).

113 See especially Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth). Most recently, in 2016, the federal government's proposal to amend the provisions again (the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015) was referred to and received a supportive response from the Senate Standing Committee on Legal and Constitutional Affairs, but no amendment occurred. See also Owen Jessep, ‘Marital agreements and private autonomy in Australia’, in Jens M Scherpe (ed) Marital Agreements and Private Autonomy in Comparative Perspective (Hart Publishing, 2012) 17.

114 Kennedy & Thorne [2016] FamCAFC 189 (overturned on appeal to the High Court). See also Campbell, Jacqueline, ‘Binding Financial Agreements Unbound’ (2012) 86(11) Law Institute Journal 34, 39Google Scholar. See also Wade, John, ‘The Perils of Prenuptial Financial Agreements: Effectiveness and Professional Negligence’ (2012) 22(3) Australian Family Lawyer 24.Google Scholar

115 Thorne v Kennedy [2017] HCA 49 (8 November 2017).

116 See our comments in note 75, above.

117 Kaspiew, Rae and Lixia Qu, ‘Property Division after Separation: Recent Research Evidence’ (2016) 30(3) Australian Journal of Family Law 1, 12Google Scholar: ‘On a continuum reflecting seven possible ranges from negative equity to more than $500,000, one in five parents [of the 10,000 separated parent survey participants interviewed in 2012] indicated having no assets to divide. One-third of parents reported having less than $140,000 to divide, with 19% having less than $40,000 and 15% having $40,000-$139,000. Just over one in ten parents fell into the next two brackets, with 12% of the sample indicating asset pools of $140,000–$299,000 and 12% having $300,000–$499,000. Across the positive asset ranges, the median fell at $200,000’.

118 Fehlberg, Belinda, Millward, Christine and Campo, Monica, ‘Post-separation Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214Google Scholar. More recently, see Women's Legal Service Victoria, Small Claims, Large Battles: Achieving Economic Equality in the Family Law System (Report, Women's Legal Service Victoria, March 2018).

119 Australian Law Reform Commission, Review of the Family Law System, above n 2, 48–9.

120 Productivity Commission, ‘Access to Justice Arrangements’ (Inquiry Report Volume 2, No 72, Productivity Commission, 2014).

121 Ibid 874.

122 FLA ss 79 (married) and 90SM (separating de facto partners).

123 Stanford v Stanford (2012) 247 CLR 108. For an analysis of the evolution of the ‘just and equitable’ requirement, see Turnbull, Christopher, ‘In Metes and Bounds: Revisiting the Just and Equitable Requirement in Family Law Property Settlements’ (2018) 31 Australian Journal of Family Law 159Google Scholar.

124 Bevan & Bevan [2013] FamCAFC 116, [86].

125 In 1978, a Joint Select Committee on the Family Law Act (the Ruddock Committee) was established, reporting in 1980: Joint Select Committee on the Family Law Act, Parliament of Australia, Family Law in Australia: Report of the Joint Select Committee on the Family Law Act, 1980). See also Graycar, Regina and Morgan, Jenny, The Hidden Gender of Law (Federation Press, 1990), 130Google Scholar.

126 Graycar and Morgan, ibid 129.

127 Scutt, Jocelynne, ‘Equal Marital Property Rights’ (1983) 18 Australian Journal of Social Issues 128CrossRefGoogle Scholar, excerpt reproduced in Graycar and Morgan, above n 125, 131–2.

128 Cox, Eva, ‘Beyond Community of Property—A Plea for Equity’ (1983) 18 Australian Journal of Social Issues 142, 143CrossRefGoogle Scholar.

129 Australian Law Reform Commission, Report on Matrimonial Property, above n 5, para 273. The ALRC's work was preceded by a discussion paper in 1985 and was informed by empirical research by the AIFS. See especially McDonald, Peter (ed), Settling Up: Property and Income Distribution in Australia (Prentice-Hall of Australia, 1986)Google Scholar and Funder, Kathleen, Harrison, Margaret, and Weston, Ruth, Settling Down: Pathways of Parents after Divorce (Australian Institute of Family Studies, 1993)Google Scholar.

130 See also Graycar and Morgan, above n 125, 137.

131 Australian Law Reform Commission, Review of the Family Law System, above n 2.

132 McDonald, above n 129; Funder, Harrison and Weston, above n 129.

133 Australian Law Reform Commission, Review of the Family Law System, above n 2; in England and Wales, see Eekelaar, John and Maclean, Mavis, Maintenance after Divorce (Clarendon Press, 1986)Google Scholar; more broadly, see Weitzman, Lenore and Maclean, Mavis (eds), The Economic Consequences of Divorce: The International Perspective (Clarendon Press, 1991)Google Scholar. See also Hunter, above n 49.

134 Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Parliament of Australia, The Family Law Act 1975—Aspects of Its Operation and Interpretation, (1992) 233–4; Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, The Family Law Reform Bill 1994 and the Family Law Reform Bill (no 2) 1994 (1995).

135 Family Law Council, above n 5.

136 Option 1 allowed departure on the basis of retrospective and prospective factors, while Option 2 allowed departure only on the basis of the prospective factors (with the report presenting two bases for consideration of this component: a ‘future needs’ approach and an approach focussing on the economic consequences of marriage and its breakdown): Family Law Council, above n 5, 36–7, 42–3.

137 Hunter, above n 49.

138 Ibid 4.

139 Kaspiew et al, above n 55, 225.

140 Ibid. More recently, analysis by the AIFS of data collected in 2012 from 10,000 separated parents reporting property settlement reached through a range of pathways (mainly discussion or ‘it just happened’), but also mediation, lawyers and adjudication) ‘suggests a median division to mothers of 57%’. The authors, however, also noted that ‘a considerable spread underlies this figure, with the most common kinds of distributions occurring across three ranges: most common was a range of 40–59%, reported by 34% of parents’; Kaspiew and Qu, above n 117, 19. Christopher Turnbull's exploratory quantitative analysis of 200 published contested decisions from Austlii made between July 2012 and June 2015, mainly by the Federal Circuit Court, similarly found that ‘The overall mean result was 54% to mothers and 46% to fathers’: Turnbull, ‘Family Property Law Settlements: An Exploratory Quantitative Analysis’, above n 109, 226.

141 See, eg, Waters & Jurek [1995] FamCA 101 (Fogarty J).

142 De Vaus et al, above n 7; Laurie Brown, ‘Divorce: For Richer, for Poorer’ (Report, Issue 39, AMP.NATSEM Income and Wealth Report, December 2016) 5. See also Belinda Fehlberg and Lisa Sarmas, ‘Australian Property Law: What Reform Might be Needed?’, forthcoming, (2018) 32 Australian Journal of Family Law.

143 Fineman, above n 26.

144 Ibid 13.

145 Ibid 17.

146 Ibid 20.

147 Ibid 14.

148 Hunter, above n 12, 81–2.

149 Ibid 82–3.

150 Ibid 83. Note, however, the suggestion previously made by one of us (Morgan) that sexual harassment may require feminists to make an equality connection if we are to avoid going down the prudish path and conceiving of it as ‘about morality’ rather than as the product of gendered power: Morgan, Jenny, ‘Sexual Harassment and the Public/Private Dichotomy: Equality, Morality and Manners’ in Thornton, Margaret (ed) Public and Private: Feminist Legal Debates (Oxford University Press, 1995) 89–110Google Scholar.

151 Bonthuys, Elsje, ‘Equality and Difference: Fertile Tensions or Fatal Contradictions for Advancing the Interests of Disadvantaged Women?’ in Davies, Margaret and Munro, Vanessa E (eds) The Ashgate Research Companion to Feminist Legal Theory (Ashgate, 2013) 85–104Google Scholar.

152 Ibid 86–9.

153 Ibid 89.

154 Ibid 86.

155 Fehlberg and Sarmas, above n 142.

156 Fehlberg and Sarmas, above n 142. In this paper we propose that the minimum starting point for achieving ‘economic and material security’ is current research on the minimum income to live a healthy life: see Saunders, Peter and Bedford, Megan, New Minimum Income for Healthy Living Budget Standards for Low-Paid and Unemployed Australians (Report, Social Policy Research Centre, UNSW Sydney, August 2017)Google Scholar. Note also that we suggest that material security is broader than economic security and would include, for example, a safe home for a party escaping family violence.

157 See the text in n 160 for our preferred approach as to the appropriate measure of material and economic security. We acknowledge that there may be disagreement as to whether this is the most appropriate measure, but the fact remains that uncontroversial measures such as the poverty line and homelessness do exist and can be invoked as minimum requirements for material and economic security.

158 [2017] HCA 49 (8 November 2017).

159 Dal Pont, Gino, Equity and Trusts in Australia (6th ed, Law Book Co, 2015) 308.Google Scholar

160 Whereas the concept of equality of outcomes would catch substantively unfair bargains.

161 Thorne v Kennedy [2017] HCA 49 (8 November 2017), [56].

162 See also Moore & Moore [2008] FamCA 32, [146]–[185] (Carmody J).

163 FLA s 60B.

164 FLA ss 61DA and 65DAA. This change has been favoured by researchers including Chisholm, above n 61. See also Rhoades, Helen et al, ‘Another Look at Simplifying Part VII’ (2014) 28 Australian Journal of Family Law 114.Google Scholar

165 As noted earlier two of us (Fehlberg and Sarmas) have also proposed that in relation to the allocation of family property on separation, the first consideration should be ‘the reasonable housing requirement of any dependent child of the parties’: see above n 142. This would mean that the child's best interests would also be an important factor in property settlements. For previous argument to the effect that children's housing needs should receive greater emphasis in Australian family property law; see Parkinson, Patrick, ‘Unfinished Business: Reforming the Law of Property Division’ (2000) 14 Australian Family Lawyer 1, 5Google Scholar; Altobelli, Tom, ‘Submission to the Family Law Pathways Advisory Group’ in Altobelli, Tom (ed), Family Law in Australia: Principles & Practice (LexisNexis Butterworths, 2003) 525Google Scholar.

166 Hunter, above n 12, 83.