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

AuthorBelinda Fehlberg,Jenny Morgan,Lisa Sarmas
DOI10.1177/0067205X1804600302
Publication Date01 September 2018
Date01 September 2018
SubjectArticle
THE PERILS AND PITFALLS OF FORMAL EQUALITY IN
AUSTRALIAN FAMILY LAW REFORM*
Belinda Fehlberg, Lisa Sarmas and Jenny Morgan**
ABSTRACT
In this paper, we identify the influence of formal equalityand 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.
I INTRODUCTION
In May 2017, the Australian federal government announced a comprehensive review
into the family law system to be conducted by the Australian Law Reform Commission
(ALRC),
1
with a final report due by 31 March 2019.
2
The terms of reference are wide,
and include the underlying substantive rules and general legal principles in relation to
parenting and property.
3
When announcing the inquiry, the then Attorney-General,
George Brandis, said it was the first comprehensive review into the family law system
since the commencement of the Family Law Act in 1976.
4
In reality, Australian post-
separation parenting and child support laws have been the subject of significant and
ongoing reform focus and amendment since the 1990s. Property division has not been
the subject of major law reform proposals since 1999
5
and continues to operate on the
* 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.
** The authors are colleagues at Melbourne Law School, University of Melbourne.
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
George Brandis, 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).
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: O ptions for Change, July 1999
<https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/Submis
368 Federal Law Review Volume 46
_____________________________________________________________________________________
basis of a very broad judicial discretion to make orders that are just and equitable.
6
Given this, proposals for major property reform would seem particularly likely now.
At a time when Australia is once again contemplating family law reform, we think
there is significant value in revisiting past reform initiatives and patterns. Doing so
offers a longer-term perspective regarding the evolution of our law, the interests at play
in its amendment, and the impacts of amendment on vulnerable parties within the
family law systemwho are most commonly women and their dependent children, due
to the greater likelihood that they will experience family violence and abuse, and post-
separation economic disadvantage.
7
Re-acquainting ourselves with what has happened
in the past places us in a stronger position to formulate legislative change that will better
protect their interests.
The premise for our paper is that formal equalityand more specifically, formal
gender equalityhas had significant influence in A ustralian family law changes over
the past 20 years. Given this, and the broader political and social context, it is highly
likely that the pull and influence of formal equality messages will continue to be evident.
We see this prospect as troubling. Despite its apparent benefits of simplicity and fairness,
we are concerned that formal equality has not served the interests of vulnerable women
and their dependent children well in Australian family law amendment. The significant
challenge we face in the current policy and reform environment where formal equality
ideology prevails is to identify alternative options that would more effectively address
inequality.
After first defining our key terms, we identify the influence of formal equality in
areas of major legislative family law change over the past 20 years in Australia, namely:
parenting, child support and pre-nuptial agreements (focusing in each instance on what
happened, why, and its impact).
8
We then consider the role of formal equality in
previous proposals for legislative change to family property law, and consider whether
even in the absence of any legislative amendment there are indications that formal
equality is having increasing influence in Australian family property law. Finally, given
the influence of formal equality and our concerns regarding this trend, we consider
sion%20on%20Property%20and%20Family%20Law%20-
%20Options%20for%20Change.pdf>; Margaret Harrison, Matrimonial Property Reform
(1992) 31 Family Matters 18. 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); Davis de Vaus et al, The Economic Consequences of
Divorce in Australia(2014) 28 International Journal of Law, Policy and the Family 26.
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.

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