Rights and Utility in Anglo‐Australian Family Law

AuthorStephen Parker
Publication Date01 May 1992
DOIhttp://doi.org/10.1111/j.1468-2230.1992.tb00914.x
THE
MODERN LAW REVIEW
Volume
55
May
1992
No.
3
Rights and Utility in Anglo-Australian Family Law
Stephen Parker*
Introduction
In the last three years, family law in Australia has undergone changes almost as
significant as those in England and Wales.’ The package of legislation in
1988-89,
usually known collectively as the Child Support Scheme, addressed issues similar
to those taken up in the British Social Security Act
1990,2
the Maintenance
Enforcement Act
19913
and the Child Support Act
1991.4
The purpose of this article is to
try
to
make some sense
at
a theoretical level of
what is going on in Anglo-Australian5 family law with the enactment of measures
such as these. This in itself would be an enormous
task
unless narrowed at the outset.
Different disciplines offer different ways into the subject matter. From a social policy
*Reader, Faculty of Law, The Australian National University.
Thanks are due to the Centre for Socio-Legal Studies, Wolfson College, Oxford, for the use of its facilities
whilst this article was being prepared, and
to
the anonymous reader for her or his helpful comments. Thanks
are also owed to Margaret Harrison of the Australian Institute of Family Studies for her help with the
original draft of the article.
I
The word ‘almost’ is used because there has been
no
equivalent of the Children Act
1989
in Australia.
There is
no
foreseeable prospect of the public and private law of child care being brought together
because the Commonwealth government exercises
no
constitutional power over children in state care.
Nevertheless, in
1988
all states except Western Australia referred to the Commonwealth government
their powers concerning access, custody, guardianship, maintenance and welfare of ex-nuptial children.
Leaving adoption aside, this means that the Commonwealth can now regulate all private child care
matters through the Family Law Act
1975.
This might
be
seen as a major first step towards an integrated
jurisdiction over children.
2
The effect of
s
8
of this Act is threefold. First, where a court
is
making an order in favour of the
Department of Social Security in respect of an unmarried sole parent
on
income support, an amount
may be included in the order in respect of the income support paid
to
the claimant herself.
In
effect,
therefore, an indirect support obligation between unmarried partners has been created. Second, the
DSS
can transfer an order which
it
has obtained to the sole parent when she comes off income support.
Third. the DSS can enforce orders which were obtained by a sole parent
on
income support.
3
This extends the power
to
make attachment of earnings orders.
It
also introduces means of payment
orders whereby, for example, maintenance can
be
required
to
be
paid by standing order or direct debit.
4
This Act, when
it
is
in force, will drastically reduce the role of the courts in child maintenance matters.
Maintenance will be assessed by the application of a formula. A parent
on
income support or family
credit will rarely be allowed
to
opt out without penalty. Payments can be collected and enforced by
the Department of Social Security. Further details are given in the footnotes that follow.
5
The term ‘Anglo-Australian’
is
used largely for economy of expression. Whilst it
is
probably true
that family law in the two countries
is
the most conceptually similar of all the common law jurisdictions,
there are nevertheless significant differences in detail and in constitutional and institutional context.
As
I
make clear below, the emphasis of the article
is
on
Australia but, if appropriate allowances are
made, many of the comments are equally applicable
to
Britain.
The
Modern
Law
Review
55:3
May
1992 0026-7961
31
1
The
Modern
Law
Review
[Vol.
55
perspective, these changes can be analysed in terms of the relief of poverty and
the distribution of wealth. To a sociologist, changing family practices and the
changing relationship between ‘the family’ and ‘the state’ (slippery terms in
themselves) are obvious foci. In terms of political and legal theory, the apparent
demise of judicial discretion and the emphasis on administrative regulation is of
considerable interest, not least for the light it sheds on the ideas of separation of
powers and the rule of law today. Even a Chicago School-style economic analysis,
as yet relatively undeveloped in family law,6 might throw up some interesting
ideas
in
terms
of
efficiency, incentives and transaction costs. Cutting across these
disciplines, an overtly feminist account might look at the material and ideological
effects that these measures may have on women.’
This article takes a rather different tack by drawing on concepts within moral
and political philosophy. The aim is to see whether family law can usefully be
analysed
in
terms of its changing ethical impulses. Such an analysis is undoubtedly
incomplete in itself and by no means precludes other approaches; indeed, it is parasitic
upon them
in
many ways.
The emphasis of the article is on developments
in
Australia, because that is where
the writer lives and works. If, however, due allowance is made for cultural and
institutional differences between the two societies, a theoretical model devised by
reference to one can readily be applied to the other.
I begin by describing briefly the Australian Child Support Scheme and some of
the events that led up to it.* There then follows a discussion of the dichotomy
between rights and utility
in
liberal ethics and between public and private
in
liberal
political philosophy. It is argued that Anglo-Australian family law, since the middle
of the last century, has oscillated between a rights model and a utility model. The
Child Support Scheme in Australia, and perhaps now the comparable legislation
in
Britain, is the result of impatience at the level of central government, and
particularly the Treasury, with the normative anarchy that has seemed recently to
reign
in
family law doctrine. That impatience has been manifested in a new sense
of the relationship between public and private spheres.
The Australian Child Support Scheme
Various factors can be identified as contributing to the introduction of the Scheme.
Throughout the
1980s,
Australia grappled with a fiscal crisis and the actuality or
threat
of
a recession. Consequently, its public spending programme came under
close scrutiny and the Government was alarmed by the increase in social security
6
See,
however,
G.
Becker,
A
Treatise
on
the
Family
(Harvard UP,
1991);
L. Cohen, ‘Marriage, Divorce
and Quasi-Rents;
or
“I
Gave Him the Best Years of my Life”’ (1987)
16
Journal
of
Legal
Srlcdies
267;
W. Bishop, “‘Is he Married?”: Marriage as Information’ (1984) 34
U
Toronto
LI
245;
E.
Landes,
‘Economics of Alimony’ (1978) 7
Journal
of
Legal
Studies
35; E. Landes and
R.
Posner, ‘The Economics
of the Baby Shortage’ (1978)
7
Journal
of
Legal
Studies
323.
7 For two relevant examples recently,
see
M. David, ‘Putting
on
an Act for the Children?’ in M. Maclean
and D. Groves (eds),
Women’s
Issues
in
Social
Policy
(Routledge,
1991)
95 and
B.
Bennett, ‘The
Economics
of
Wifing Services: Law and Economics
on
the Family’ (1991)
18
Journal
of
Law
and
Society
206.
8
The Scheme performs the function in this article of a case study which illustrates the theory being
put forward.
I
do not claim to
be
offering a comprehensive description of its workings; see, however,
S.
Parker, ‘Child Support in Australia’
(1991)
5
Inr
JofLaw
andthe
Family
24. A rather fuller account
is given of the Scheme’s origins
so
that the later discussion
of
public and private spheres can be more
easily understood.
3
12

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