Book Review: Family Law in Australia

AuthorP. E. Nygh
Date01 September 1979
DOI10.1177/0067205X7901000305
Published date01 September 1979
Subject MatterBook Reviews
BOOK REVIEWS
Family Law in Australia by H. A.
FINLAY,
B.A.
(Lond.),
LL.B.
(Tas.),
PH.D.
(Mon.);
Barrister-at-Law; Associate Professor of Law, Monash
University. (Butterworths, 1979, 2nd Edition), pp. i-xxxii, 1-365. Cloth,
recommended
r~tail
price $27.00 (ISBN: 0409 35450
3);
Paperback,
recommended retail price $21.50 (ISBN: 0409 35451
1).
Although officially this book
is
the 2nd edition of Finlay and Bissett
Johnson's Family Law in Australia, it bears very little resemblance to
that book, first published in 1972. As the author explains in his preface,
the changes in the law since 1972 have been
so
profound and dramatic
that an entirely new text was called for.
The new edition reflects not only in content
but
also in approach the
changed philosophy of the Family Law Act 1975. Whereas the previous
law
was
formalistic, laying stress on findings of matrimonial fault and
legal definitions thereof, the new Act represents the modern, more
flexible and interdisciplinary approach towards issues of custody and
property. The new edition consequently lays agreater emphasis on the
sociological and psychological aspects of the family.
The new edition centres on the Family Law Act 1975. The question
of its constitutional validity, its ambit, its substantive provisions and
the operation of the Family Court are
at
the core
of
the book. But,
as
the author points out, not all matters relating to the family are covered
by the Act. There
is
in the first place the embarrassing gap caused by
the decision
of
the High Court in Russell
v.
RusselP which still leaves
an area for the operation of State legislation based on the Married
Women's Property Act. There
is
also the area of adoption which in the
moremodern view must be seen
as
custodial rather than as asubstitution
for the natural parent/child relationship. The former
is
of declining
importance in view of the fact that sooner
or
later proceedings for
dissolution will be instituted giving the Family Court jurisdiction,
although some State judges are fighting avaliant rearguard action to
retain jurisdiction in such matters. The latter
is
amore serious gap to
which Professor Finlay devotes aseparate chapter.
Finally, there
is
the growing tendency of parties to establish family
relationships without marriage. These can take the form of the stable
factual union which
is
amarriage all
but
in name,
or
it can take the
form of asole parent/child relationship, usually the mother. Should the
law deal with this situation by assimilating it to amarriage,
or
should it
give the parties aflexibility in arranging their own marital conditions
which married couples lack? Professor Finlay deals with this dilemma
in Chapter 9entitled "Families without Marriage" in achallenging and
most interesting way. Iventure to predict that this Chapter will be a
growing one in future editions.
The new edition
is
written in avery readable style.
It
will be
1(1976) 134 C.L.R. 495.
312

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