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Australian family law in context : commentary and materials [Seventh edition.]
 9780455241241, 0455241244

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Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

AUSTRALIAN FAMILY LAW IN CONTEXT

Commentary and Materials

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AUSTRALIAN FAMILY LAW IN CONTEXT Commentary and Materials

PATRICK PARKINSON AM

Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

MA (Oxon), LLM (Illinois), LLD (Sydney) Dean of Law, University of Queensland Solicitor of the High Court of Australia

SEVENTH EDITION

LAWBOOK CO. 2019

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street Pyrmont NSW First edition ........................................ 1994 Second edition.................................... 1999 Third edition ....................................... 2004 Fourth edition ..................................... 2009 Fifth edition ........................................ 2012 Sixth edition ....................................... 2015 Seventh edition................................... 2019 ISBN 9780455241234 (pbk)

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© 2019 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submited online at www.ag.gov.au/​cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-​General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Editor: NewgenKnowledgeWorks Pvt. Ltd., Chennai, India Product Developer: Elizabeth Gandy Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info see www.pefc.org

TABLE OF CONTENTS Table of Cases.................................................................................................................................. vii Table of Statutes............................................................................................................................. xix

Part 1: The Family in Context Chapter 1: What is Family?.........................................................................................  3 Chapter 2: Family Forms and Family Behaviours...................................................  31

Part 2: Family Law in Context Chapter 3: The Historical Context...........................................................................  65 Chapter 4: The Theoretical Context........................................................................  93 Chapter 5: The Constitutional Context................................................................  123

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Chapter 6: Family Violence.....................................................................................  155

Part 3: The Resolution of Family Disputes Chapter 7: Courts in Family Law............................................................................  195 Chapter 8: Dispute Resolution in Family Law......................................................  225 Chapter 9: Family Lawyers and Professional Ethics............................................  261

Part 4: The Formation and Dissolution of Marriage Chapter 10: Marriage..............................................................................................  295 Chapter 11: Divorce.................................................................................................  311

Part 5: Economic Aspects of Relationship Breakdown Chapter 12: The Economic Context.......................................................................  345 Chapter 13: Child Support......................................................................................  373 Chapter 14: Maintenance........................................................................................  425 Chapter 15: Private Ordering of Property Distribution and Maintenance.....  455

Australian Family Law in Context: Commentary and Materials

Chapter 16: Property under the Family Law Act.................................................  481 Chapter 17: Discretion and Process in Matrimonial Property Disputes under the Family Law Act.......................................................................  517 Chapter 18: Property and the Rights of Third Parties.......................................  587 Chapter 19: De facto and Domestic Relationships: Powers under Statute.....  623

Part 6: Children in Family Law Chapter 20: Children’s Rights and Best Interests...............................................  641 Chapter 21: Parenthood..........................................................................................  659 Chapter 22: Children and Relationship Breakdown: The Psychological Context.............................................................................................  703 Chapter 23: Parenting Orders: General Principles..............................................  747 Chapter 24: Children’s Matters: Particular Kinds of Disputes..........................  837

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Index............................................................................................................................................  877

TABLE OF CASES [Where an extract from a case is reproduced, the name of the case and its paragraph number appear in bold type.]

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A A v A: Relocation Approach [2000] FLC 93-​035 ....................................................................... 5.135 A Bank v Coleiro and Anor [2011] FamCAFC 157 ..................................................................... 7.155 AB and ZB (2003) FLC 93-​140 ............................................................................................... 17.115 AC & VC (2013) 275 FLR 299; [2013] FamCAFC 60 ......................................................  5.195, 18.60 Adair & Milford [2015] FamCAFC 29 ..................................................................................... 18.170 Agar-​Ellis v Lascelles (1883) 24 Ch D 317 .............................................................................. 21.255 Alex: Hormonal Treatment for Gender Identity Dysphoria, Re [2004] FamCA 297 .................. 21.295 AM (Adult Child Maintenance), Re [2006] FLC 93-​262 ...............................................  13.285 AMS v AIF (1999) 199 CLR 160 ........................................... 5.125, 5.130, 5.135, 23.75, 24.100 Atkins and Hunt [2016] FamCAFC 230 .................................................................................. 14.195 Abdullah, In Marriage of [1981] FLC 91-​003 ................................................................  18.120 Agius and Agius [2010] FamCAFC 143 .................................................................................. 17.200 Aird & Hamilton-​Reid [2007] FamCA 4 .................................................................................. 10.105 Aldridge v Keaton (2009) 235 FLR 450 .................................................  21.45, 23.65, 23.95, 23.375 Aleksovski, In Marriage of [1996] FLC 92-​705 ...........................................................  17.115, 17.170 Anderson, In Marriage of [1982] FLC 91-​251 ...................................................................   9.65 Anderson & McIntosh (2013) FLC 93-​568 ............................................................................... 15.35 Anderson and Anderson [2000] FLC 93-​016 ............................................................................ 15.80 Anson & Meek [2017] FamCAFC 25 ...................................................................................... 17.365 Aroney, In Marriage of [1979] FLC 90-​709 ................................................................  17.265, 17.270 Arthur & Secretary, Department of Family & Community Services [2017] FamCAFC 111 ....................................................................................................... 24.185 ASA v Queen’s University at Kingston [2002] FCA 905 ..........................................................  [9.150] Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 ............................................  18.15 Ashton, In Marriage of [1986] FLC 91-​777 ............................................................................... 18.60 Astbury, In Marriage of [1978] FLC 90-​494 .............................................................................. 14.85 Atkinson, In Marriage of [1997] FLC 92-​728 .......................................................................... 16.185 Attorney-​General (Vic) v Commonwealth (1961-​1962) 107 CLR 529 ...................  5.65, 5.80, 10.150 Australian Securities and Investments Commission v Rich [2003] FLC 93-​171 .............  7.155, 15.100

B B v R [1995] FLC 92-​636 ........................................................................................................ 23.340 B Pty Ltd and Ors and K (2008) FLC 93-​380; [2008] FamCAFC 113 ............................  5.195, 18.100 B and B [1993] FLC 92-​357 ..................................................................................................... 24.25 B and B: Family Law Reform Act 1995 [1997] FLC 92-​755 ..........................................  21.240, 23.75 BM v DA (2007) 39 Fam LR 168 ............................................................................................ 13.145 Bailey, In Marriage of [1990] FLC 92-​117 ............................................................................... 18.145 Baker v The Commonwealth [2012] FCAFC 121 ........................................................................ 7.65 Balzano and Balzano [2010] FamCAFC 11 ............................................................................. 13.245 Balzia & Covich [2009] FamCA 1357 ..................................................................................... 15.130 Banks & Banks (2015) FLC 93-​637 ............................................................................  23.195, 24.100 Bant and Clayton [2015] FamCAFC 222 .................................................................................. 24.40 Baranski and Baranski (2012) 259 FLR 122 ............................................................................. 17.320 Bartz & Manthey (No 2) [2018] FamCAFC 140 ...................................................................... 23.135

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Australian Family Law in Context: Commentary and Materials

Bates and Sawyer, In Marriage of [1977] FLC 90-​319 ............................................................. 11.120 Batty, In Marriage of [1986] FLC 91-​703 .................................................................................. 11.95 Baumgartner v Baumgartner (1987) 164 CLR 137 ................................................................... 19.10 Beach Petroleum NL v Abbott Tout Russell Kennedy (1999) 48 NSWLR 1 ................................. 9.135 Beck (No 2), In Marriage of [1983] FLC 91-​318 ..................................................................... 14.105 Beckham & Desprez [2015] FamCAFC 247 ............................................................................ 23.180 Bell, Re; Ex parte Lees (1980) 146 CLR 141 ....................................................................  9.165 Bennett, In Marriage of [1991] FLC 92-​191 ..............................................................  17.360, 23.350 Bernadette, Re [2011] FamCAFC 50 ............................................................................  21.290, 23.55 Bernieres & Dhopal [2017] FamCAFC 180 ............................................................................. 21.100 Berry and James [2010] FamCAFC 58 ...................................................................................... 15.80 Best, In Marriage of [1993] FLC 92-​418 ..................................................  14.40, 14.85, 16.100 Bethell, In re; Bethell v Hildyard (1888) 38 Ch D 220 ................................................................. 5.75 Bevan, In Marriage of [1995] FLC 92-​600 .....................................................................  14.45, 14.60 Bevan & Bevan (2013) 279 FLR 1 .................................................................................  17.35, 17.45 Bilous v Mudaliar (2006) 65 NSWLR 615 ............................................................................... 17.205 Biltoft, In Marriage of [1995] FLC 92-​614 ....................................................................  18.150 Billington & Billington (No 2) [2008] FamCA 409 .................................................................  [9.150] Birch, In Marriage of (1976) 26 FLR 378 ................................................................................ 11.125 Bishop & Bishop [2013] FamCAFC 138 .................................................................................. 17.155 Black, In Marriage of [1992] FLC 92-​287 ................................................................................ 16.185 Black & Black [2008] FamCAFC 7; (2008) FLC 93-​357 ..............................................  13.245, 15.125 Bolton, In Marriage of [1992] FLC 92-​309 ............................................................................. 13.225 Bondelmonte v Bondelmonte (2017) 259 CLR 662 ...................................................  23.155, 23.255 Bonnici, In Marriage of [1992] FLC 92-​272 ...................................................................  17.150 Borg, In Marriage of [1991] FLC 92-​215 ................................................................................ 13.225 Bracklow v Bracklow (1999) 169 DLR 577 ....................................................................  5.165, 14.40 Braithwaite and Fox (unreported, HB 5487 of 1980, Frederico J, 2000) ................................. 14.200 Bransdon and Davis & Gilbert [2007] FamCA 579 ................................................................... 9.135 Brear v Corcoles-​Alfaro [1997] FLC 92-​768 ...................................................................  23.445 Brease, In Marriage of [1998] FLC 92-​793 .............................................................................. 17.135 Bremner, In Marriage of [1995] FLC 92-​560 ........................................................................... 17.185 Brianna and Brianna [2010] FamCAFC 97 ....................................................... 21.135, 21.155 Brodie & Brodie [2009] FamCAFC 6 ...................................................................................... 17.360 Brown v Green [1999] FLC 92-​873 ........................................................................................ 17.335 Browne v Keith [2015] FamCAFC 143 .................................................................................... 24.100 Bryson v Bryant [1992] DFC 95-​131 ........................................................................................ 16.10 Burke, In Marriage of [1993] FLC 92-​356 ............................................................................... 17.350

C Calvin & McTier [2017] FamCAFC 125 .................................................................................. 17.155 C and J, Re [1996] FLC 92-​697 ................................................................................................ 24.25 CDJ v VAJ [1998] FLC 92-​828 ................................................................................................... 23.75 Cabbell and Cabbell [2009] FamCAFC 205 ...............................................................  17.200, 17.215 Cadman & Hallett (2014) FLC 93-​603 ..................................................................................... 19.70 Caffyn & Protz Group and Anor [2018] FamCAFC 147 ............................................................ 15.55 Cahill and Cahill [2003] FamCA 172 ...................................................................................... 17.385 Cales and Cales [2010] FamCAFC 237 ................................................................................... 24.100 Caretti, In Marriage of [1977] FLC 90-​270 .....................................................................  11.65 Carter and Carter [2011] FamCA 100 .................................................................................... 14.200 Carvill [1984] FLC 91-​586 ........................................................................................................ 16.95 Chancellor & McCoy [2016] FamCAFC 256 .....................................................................  17.35 Chapman, In Marriage of [1979] FLC 90-​671 ........................................................................ 14.165 Chapman & Chapman [2014] FamCAFC 91 ............................................................................ 17.35

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Table of Cases

Charisteas and Ors [2017] FamCAFC 112 ................................................................................ 18.35 Chemaisse, In Marriage of [1988] FLC 91-​915 ....................................................................... 18.145 Chemaisse, In Marriage of; Commissioner of Taxation (Intervener) [1990] FLC 92-​133 ........................................................................................................... 18.145 Child Support Registrar & Crabbe [2014] FamCAFC 10 .............................................  13.230 Clarence & Crisp (2016) FLC 93-​728 ....................................................................................... 19.65 Clarke Boyce v Mouat [1994] 1 AC 428 ................................................................................... 9.135 Clauson, In Marriage of [1995] FLC 92-​595 ..............................................................  14.130, 17.350 Cleary, In Marriage of (1976) 27 FLR 280 ............................................................................... 17.110 Coghlan and Coghlan [2005] FLC 93-​220 .......................................................  16.125, 17.380 Colak & Viduka [2016] FamCAFC 79 ..................................................................................... 24.185 Collins, In Marriage of [1990] FLC 92-​149 ................................................................  17.135, 17.140 Commercial Bank of Australia Ltd v Amadio ........................................................................... 15.155 Commissioner of Taxation v Hornibrook [2006] FCAFC 170; (2006) 156 FCR 313) ........................................................................................................ 21.100 Commonwealth v Australian Capital Territory (2013) 250 CLR 441 .......................................... 19.45 Commonwealth, The v Australian Capital Territory [2013] HCA 55 ........  5.10, 5.75, 5.200 Connors & Taylor [2012] FamCA 207 ...................................................................................... 21.45 Cook & Maxwell, Re; Ex parte C (1985) 156 CLR 249 ................................................................ 5.65 Cook and Langford [2008] FLC 93-​374 .................................................................................. 17.200 Cooper, In Marriage of [1989] FLC 92-​017 ............................................................................ 13.305 Cooper (falsely called Crane) v Crane [1891] P 369 ................................................................. 10.70 Cormick and Cormick v Salmon (1984) 156 CLR 170 ................................................................ 5.65 Cosgrove v Cosgrove (No 2) [1996] FLC 92-​701 ................................................................... 13.275 Cowling, In Marriage of [1998] FLC 92-​801 ........................................................................... 23.165 Crawford, In Marriage of [1979] FLC 90-​647 ......................................................................... 17.185 Crick & Bennett [2018] FamCAFC 68 ...................................................................................... 19.70 Crisp & Clarence [2015] FamCA 964 ............................................................................  21.40, 21.55 Cubbin and Cutler [2018] FamCAFC 84 .................................................................................. 23.90

D D & D [2005] FamCA 1462 ................................................................................................... 17.290 D and SV [2003] FamCA 280 ................................................................................................... 24.85 D'Arcy and Lay, Re [1994] FLC 92-​466 ..................................................................................... 21.25 Daymond & Daymond [2014] FamCAFC 212 ........................................................................ 17.365 DP v Commonwealth Central Authority; JLM v Director-​General New South Wales Department of Community Services (2001) 206 CLR 401 .......................................................................................  24.125, 24.180 David, Re [1997] FLC 92-​776 ................................................................................ 23.360, 24.50 Davidson, In Marriage of [1991] FLC 92-​197 ........................................................................... 18.60 Davidson (No 2), In Marriage of [1994] FLC 92-​469 .............................................................. 18.140 Davis, In Marriage of [1976] FLC 90-​062 ........................................................................  16.40 De Angelis, In Marriage of [2003] FLC 93-​133 ....................................................................... 17.165 De L v Director-​General, NSW Department of Community Services (1996) 187 CLR 640 ........................................................................... 23.430, 24.165, 24.170 Dees and Dees [2010] FMCAfam 682 ...................................................................................... 16.45 Dein, In Marriage of [1989] FLC 92-​014 ................................................................................ 17.350 Deniz, In Marriage of (1977) 31 FLR 114 ............................................................................... 10.105 Denyan and Beattie [2011] FamCA 155 ................................................................................... 20.65 Dickons and Dickons (2012) 50 Fam LR 244 at [24] ............................................................... 17.300 Dodge and Krapf, In Marriage of [1991] FLC 92-​214 ............................................................. 13.305 Doherty & Doherty [2016] FamCAFC 182 ............................................................................. 21.205 Donnell v Dovey (2010) 237 FLR 53 ..................................................................  23.335, 23.375 Dougherty v Dougherty (1987) 163 CLR 278 .............................  5.145, 16.25, 17.95, 18.205

Australian Family Law in Context: Commentary and Materials

Doyle, In Marriage of [1992] FLC 92-​286 ............................................................................... 23.310 Drysdale and Drysdale [2011] FamCAFC 85 ............................................................................. 14.85 Dudley and Anor & Chedi [2011] FamCA 502 ....................................................................... 21.100 Duff (DL and EJ), In Marriage of [1977] FLC 90-​217 .....................................................  16.85 Duffy v Da Rin and Anor (2014) ALR 340 ................................................................................. 19.65 Durham v Durham (1885) 10 PD 80 ...................................................................................... 10.110

E Eaby and Speelman [2015] FamCAFC .................................................................................... 23.195 Edwards and Edwards (2006) FLC 93-​306 ............................................................................. 24.190 Egan v Canada [1995] 2 SCR 513 ............................................................................................ 10.15 Elford and Elford [2016] FamCAFC 45 ................................................................................... 17.130 Ellison and Anor & Karnchanit [2012] FamCA 602 ......................................................  21.90, 21.105 Eufrosin [2014] FamCAFC 191 ............................................................................................... 17.140 Evans, In Marriage of [1978] FLC 90-​435 ......................................................................  14.60, 14.85 Evans, In Marriage of [1990] FLC 92-​150 ................................................................................. 11.20 Evans, In Marriage of [1992] FLC 92-​320 ............................................................................... 14.180 Evelyn, Re [1998] FLC 92-​807 .................................................................................................. 21.70

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F F, In Marriage of [1989] FLC 92-​031 ...................................................................................... 21.250 F, Re [1982] FLC 91-​214 .......................................................................................... 14.85, 14.90 F, Re; Ex parte F (1986) 161 CLR 376 ................................................................................  5.60, 5.65 F and C [2004] FamCA 568 ................................................................................................... 24.200 F and N, In Marriage of [1987] FLC 91-​813 ........................................................................... 23.360 F: Litigants in Person Guidelines, Re [2001] FLC 93-​072 ........................................................... 7.165 Falk, In Marriage of [1977] FLC 90-​247 ..............................................................  11.40, 11.60, 11.65 Farnell & Anor and Chanbua (2016) FLC 93–​700 .................................................................. 21.100 Farmer and Bramley [2000] FLC 93-​060 ................................................  15.35, 17.140, 17.350 Fauna Holdings Pty Ltd and McGillivray v Mitchell (No 2) [2000] FLC 93-​053 ............................................................................................................. 16.70 Fedele and Fedele (1986) FLC 91-​744 ...................................................................................... 16.40 Feltus, In Marriage of [1977] FLC 90-​212 ............................................................................... 11.120 Fenech, In Marriage of [1976] FLC 90-​035 ............................................................................... 11.70 Ferguson, In Marriage of [1978] FLC 90-​500 ......................................................................... 17.310 Ferraro, In Marriage of [1993] FLC 92-​335 .........................................  17.275, 17.455, 17.465 Ferraro & Ferraro [1992] FamCA 64; (1993) FLC 92-​335 ....................................................... 17.290 Fevia v Carmel-​Fevia [2009] FamCA 816 ................................................................................ 15.160 Fielding v Nichol [2014] FCWA 77 ........................................................................................... 17.35 Fields and Smith [2015] FamCAFC 57 .................................................................................... 17.295 Firth, In Marriage of; Boyer (Intervener) [1988] FLC 91-​971 ....................................  23.390 Fisher v Fisher (1986) 161 CLR 438 ............................................................................................ 5.85 Flanagan & Handcock [2001] FLC 93-​074 ............................................................................... 20.65 Fleming & Schmidt [2017] FamCAFC 12 ................................................................................. 19.70 Fogwell v Ashton [1993] FLC 92-​429 ....................................................................................... 21.25

G G v H [1992] FLC 92-​317 ....................................................................................................... 21.165 G v H [1993] FLC 92-​380 ..........................................................................................  21.100, 21.165 G v H (1994) 181 CLR 387 ...............................................................................................  21.170 G & G [2001] FamCA 1453 ................................................................................................... 17.365 G, In Marriage of [1978] FLC 90-​498 ....................................................................................... 11.55

Table of Cases

G, Re [2000] FLC 93-​025 ......................................................................................................... 23.55 G and A [2007] FCWA 11 ........................................................................................................ 5.135 Gahen and Gahen [2014] FamCAFC 122 ................................................................................. 24.40 Garlick, In Marriage of [1993] FLC 92-​428 ............................................................................... 15.55 Garner and Lee [2011] FamCA 1000 ...................................................................................  [10.110] Garska v McCoy 278 SE 2d 357 (1981) ................................................................................... 20.35 Gebert, In Marriage of [1990] FLC 92-​137 ......................................................................  15.75 Gelley (No 2), Re [1992] FLC 92-​291 ..................................................................................... 18.140 Gett v Tabet (2009) 254 ALR 504 .......................................................................................... 23.165 Gillick v West Norfolk and Wisbech Area Health Authority and the DHSS [1986] AC 112 ........................................................................ 21.255, 21.260 Godfrey and Sanders [2007] FamCA 102 ............................................................................... 23.120 Gong & Wei [2017] FamCAFC 55 .......................................................................................... 23.195 Goode and Goode [2006] FLC 93-​286 .....................   21.235, 23.140, 23.145, 23.190, 23.355 Gosper, In Marriage of [1987] FLC 91-​818 ............................................................................. 17.110 Gould, In Marriage of [1993] FLC 92-​434 ..........................................................  5.175, 18.125 Grella and Jamieson [2017] FamCAFC 21 .............................................................................. 24.100 Grieves & Tully [2011] FamCA 617 .......................................................................................... 9.155 Gronow v Gronow (1979) 144 CLR 513 ................................................................................ 23.265 Groth & Banks [2013] FamCA 430 .......................................................................................... 21.55 Gyopar, In Marriage of [1986] FLC 91-​769 ............................................................................ 14.165 Gyselman, In Marriage of [1992] FLC 92-​279 ...............................................................  13.190

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H H, In Marriage of [1995] FLC 92-​599 ..................................................................................... 23.350 H and H [2007] FMCAfam 27 ................................................................................................ 21.200 Halabi v Artillaga [1994] FLC 92-​470 ..................................................................................... 18.140 Hall v Hall (2016) 257 CLR 490 .............................................................................................. 16.150 Hall, In Marriage of [1979] FLC 90-​713 .........................................................................  23.470 Halpern v Canada (2003) 65 OR (3d) 161 ............................................................................... 10.15 Hannema, In Marriage of (1981) 7 Fam LR 542 ..................................................................... 15.130 Harriott & Arena [2016] FamCAFC 69 ..................................................................................... 19.95 Harris v Caladine (1991) 172 CLR 84 ...................................................................... 7.60, 15.50 Harris v Harris (2010) 245 FLR 172 ........................................................................................ 24.185 Harris & Harris [2011] FamCAFC 245 ....................................................................................... 18.60 Harris and Dewell [2018] FamCAFC 94 .................................................................................... 18.60 Harrison and Woollard, In Marriage of [1995] FLC 92-​598 ..................................................... 21.265 Hauff, In Marriage of [1986] FLC 91-​747 ............................................................................... 17.370 Hayes and Marquis [2008] NSWCA 10 ................................................................................... 19.105 Hayson, In Marriage of [1987] FLC 91-​819 ............................................................................ 14.165 Heath, In Marriage of; Westpac Banking Corporation (Intervener) [1983] FLC 91-​362 ..............................................................................................  17.165, 18.125 Heath; Westpac Corporation, Intervener (No 2) [1984] FLC 91-​517 ....................................... 18.125 Hendy and Deputy Child Support Registrar and Webb (2001) 27 Fam LR 641 .................................................................................................  13.160 Hewer v Bryant [1970] 1 QB 357 ........................................................................................... 21.255 Hickey, In Marriage of [2003] FLC 93-​143 ...................................................................  16.120, 17.40 Hides v Hatton [1997] FLC 92-​759 ........................................................................................ 13.165 Hoffman v Hoffman [2014] FamCAFC 92 ......................................................................  17.290 Hogan and Hogan [2008] FamCA 41 ....................................................................................... 14.85 Holland & Holland [2017] FamCAFC 166 .............................................................................. 17.155 Holmes, In Marriage of [1990] FLC 92-​181 ............................................................................ 17.125 Hope, In Marriage of [1977] FLC 90-​294 ................................................................................. 14.85 Horman, In Marriage of [1976] FLC 90-​024 ............................................................................. 23.75

Australian Family Law in Context: Commentary and Materials

Hoult [2013] FamCAFC 109 ................................................................................  15.125, 15.130 Housing Commission of New South Wales v Tatmar Pastoral Co (1983) 3 NSWLR 378 ........................................................................................................ 17.360 Hunt and Hunt (otherwise reported subnom) [2006] FamCA 167; (2006) 36 Fam LR 64 .......................................................  5.190, 18.35 Hurst & Hurst [2018] FamCAFC 146 ...................................................................................... 17.215 Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 ........................................................... 10.50

I Immigration and Multicultural and Indigenous Affairs, Minister for v B (2004) 219 CLR 365 ................................................................................................  5.115, 23.55 Iqbal & Kadir [2017] FamCA 315 ........................................................................................  [10.105] Ivanovic, In Marriage of [2000] FLC 93-​003 ........................................................................... 18.140

J

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Jacobson and Jacobson (1989) FLC ¶92-​003 .......................................................................... 17.300 JJT, Re; Ex parte Victoria Legal Aid [1998] FLC 92-​812 ............................................................ 23.420 James, In Marriage of [1978] FLC 90-​487 ............................................................................... 17.165 Jess and Garvey [2018] FamCAFC 44 ..................................................................................... 23.155 Johnson and Johnson [1997] FLC 92-​764 ................................................................................. 7.165 Johnson and Page [2007] FamCA 1235 ............................................................................ 24.30 Jonah & White [2012] FamCAFC 200 ...................................................................................... 19.70 Jonah & White (2012) FLC 93-​522; [2011] FamCA 221 ................................................  19.65, 19.70 Jurchenko & Foster [2014] FamCAFC 127; (2014) FLC 93 ...........................................  23.120, 24.85

K K v Z [1997] FLC 92-​783 ......................................................................................................... 23.75 K, Re [1994] FLC 92-​461 ..................................................................................................  23.410 Kallinicos v Hunt [2005] NSWSC 1181) ................................................................................  [9.150] KAM and MJR [1998] FamCA 1896 .......................................................................................... 23.65 Kane and Kane [2013] FamCAFC 205 ...................................................................................... 17.75 Kanelos and Kanelos [2014] FamCA 36 .................................................................................... 16.45 Kapadia, In Marriage of [1991] FLC 92-​245 ............................................................................. 10.35 Kardos v Sarbutt (2006) 34 Fam LR 550 ................................................................................. 17.205 Keach and Keach [2011] FamCA 192 ....................................................................................... 14.60 Keaton and Aldridge [2008] FMCAfam 939 ............................................................................. 21.45 Keegan v Ireland (1994) 18 EHRR 342 ..............................................................................   1.80 Kelly (No 2), In Marriage of [1981] FLC 91-​108 ...........................................................  16.140 Keltie v Keltie and Bradford [2002] FLC 93-​106 ..................................................................... 13.305 Kennon v Spry (2008) 238 CLR 366 ................................ 16.105, 16.110, 18.60, 18.75, 18.80 Kennon, In Marriage of [1997] FLC 92-​757 .............................  5.150, 14.110, 17.265, 17.315 Kessey, In Marriage of [1994] FLC 92-​495 .................................................................  17.110, 17.115 Keyssner, In Marriage of [1976] FLC 90-​075 .......................................................................... 11.110 Khan v Khan [1963] VR 203 ................................................................................................... 10.150 Kiesinger and Paget [2008] FamCAFC 23 ................................................................................. 14.60 Kimberley & Kimberley [2011] FamCA 406 .............................................................................. 16.45 King and Finneran, Re [2001] FLC 93-​079 ............................................................................. 24.200 Knight, In Marriage of [1987] FLC 91-​854 ......................................................................  18.95 Knox & Knox [2018] FamCAFC 73 ........................................................................................ 23.395 Kostres and Kostres [2009] FLC 93-​420 .................................................................................. 15.160 Kowaliw [1981] FLC 91-​092 .................................................................................................. 17.335

Table of Cases

Kowalski, In Marriage of [1993] FLC 92-​342 .......................................................................... 17.305 Krotofil, In Marriage of [1980] FLC 90-​909 ............................................................................ 18.200

L L, In Marriage of [1983] FLC 91-​353 ...................................................................................... 23.310 Lanceley, In Marriage of [1994] FLC 92-​491 ............................................................................. 16.20 Lane (No 1), In Marriage of [1976] FLC 90-​055 ..................................................  11.80, 11.95 Lansell v Lansell (1964) 110 CLR 353 ............................................  5.45, 5.50, 5.55, 5.60, 5.65 Lee Steere, In Marriage of [1985] FLC 91-​626 ..............................................  17.185, 17.450, 17.460 Lee and Tse, In Marriage of (2005) 33 Fam LR 167 .....................................................  21.145 Lenehan, In Marriage of [1987] FLC 91-​814 .................................................................  16.165 Lengyel v Rasad (No 2) [1990] FLC 92-​154 .....................................................................  10.40 Leo, Re: [2015] FamCA 50 ..................................................................................................... 21.295 Liatos and Liatos [2008] FamCAFC 111 .................................................................................... 16.70 Lincoln, Re (No 2) [2016] FamCA 1071) ................................................................................ 21.295 Linder & Linder [2016] FamCAFC 13 ..................................................................................... 18.170 Little, In Marriage of [1990] FLC 92-​147 .................................................................................. 14.45 Lovine & Connor [2012] FamCAFC 168 ................................................................................. 17.360 Lowe and Herald and Weekly Times Ltd, Re [1995] FLC 92-​595 ............................................... 7.155 LRV v Hon Justice Colin James Forrest (2012) 247 CLR 304 .................................................... 24.185 Luton v Lessels (2002) 210 CLR 333 .............................................................................  5.150, 13.05

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M M v H [1994] FLC 92-​453 ........................................................................................................ 5.105 M v H [1999] 2 SCR 3 .............................................................................................................. 10.15 M v M (1988) 166 CLR 69 ..................................................................................................  24.20 M, In Marriage of [1998] FLC 92-​816 ...................................................................................... 14.65 MRR v GR (2010) 240 CLR 461 .......................................................................... 23.165, 23.175 MW v Director-​General, Department of Community Services (2008) 244 ALR 205 ....................................................................................................  24.155 MacDonald Estate v Martin, 77 DLR (4th) 249 ......................................................................  [9.150] Malcolm, In Marriage of [1977] FLC 90-​220 .......................................................................... 14.165 Maldera and Orbel [2014] FamCAFC 135 .................................  23.45, 23.260, 23.375, 23.420 Mallet v Mallet (1984) 156 CLR 605 .............................................  16.170, 17.80, 17.85, 17.90 Malpass and Mayson, In Marriage of [2000] FLC 93-​061 ....................................................... 16.185 Malyzsko, In Marriage of [1979] FLC 90-​650 ......................................................................... 11.125 Mancini v Mancini [1999] NSWSC 800 .................................................................................... 9.150 Marion, Re (1992) 175 CLR 218 .....................................................................................  21.275 Marion (No 2), Re [1994] FLC 92-​448 ................................................................................... 21.290 Marsden and Winch (No 3) [2007] FamCA 1364 ..................................................................... 23.95 Marsh, In Marriage of [1994] FLC 92-​443 .............................................................................. 17.310 Marvel v Marvel (2010) 43 Fam LR 348 ....................................................................  21.240, 23.155 Mason & Mason and Anor [2013] FamCA 424 ...............................................................  21.85 Masters & Cheyne [2016] FamCAFC 255 ............................................................................... 13.245 Mathieson and Mathieson [1977] FLC 90-​230 ....................................................................... 23.355 Maunder, In Marriage of (1999) 153 FLR 272 ................................................................  11.25 McCall and Clark [2009] FLC 93-​405 ...............................................................................  24.95 McFarlane v McFarlane [2006] 2 AC 618 .........................................................  14.40, 14.50, 14.105 McGillivray v Mitchell [1998] FLC 92-​817 ................................................................................ 9.155 McGregor v McGregor [2012] FLC 93-​507 .............................................................................. 22.05 McLay, In Marriage of [1996] FLC 92-​667 .............................................................................. 17.280 McLeod, In Marriage of [1976] FLC 90-​043 ............................................................................. 11.70

Australian Family Law in Context: Commentary and Materials

McTaggart, In Marriage of [1988] FLC 91-​920 ....................................................................... 17.120 Mehmet (No 2), In Marriage of [1987] FLC 91-​801 ............................................................... 17.235 Milankov, In Marriage of [2002] FamCA 195 .......................................................................... 14.140 Miller, In Marriage of [1983] FLC 91-​328 ................................................................................. 10.35 Milligan and Milligan [2017] FamCAFC 218 .......................................................................... 18.125 Mills, In Marriage of [1976] FLC 90-​079 .................................................................................. 16.25 Minton v Minton [1979] AC 593 ............................................................................................. 15.15 Mitchell, In Marriage of [1995] FLC 92-​601 ..................................................................  14.40, 14.60 Moge v Moge (1992) 43 RFL (3d) 345 .................................................................................... 14.40 Molen, In Marriage of [1993] FLC 92-​344 .................................................................  14.100, 17.240 Money, In Marriage of [1994] FLC 92-​485 ................................................................  17.185, 17.215 Morris, In Marriage of [1982] FLC 91-​271 .............................................................................. 17.370 Morrison, In Marriage of [1995] FLC 92-​639 .......................................................................... 23.395 Morrison [1995] FLC 92-​573 ................................................................................................... 15.80 Moss v Moss (orse Archer) [1897] P 263 ................................................................................ 10.105 Mullane v Mullane (1983) 158 CLR 436 .......................................................................  16.45, 16.95 Mullen and De Bry [2006] FLC 93-​293 .............................................................................  16.65 Mulvany and Lane (2009) FLC 404 .................................................................................  23.370 Mulvena, In Marriage of [1999] FLC 93-​006 .......................................................................... 13.305 Municipal Officers Assoc of Australia v Lancaster (1981) 37 ALR 559 ............................................................................................................. 23.45 Murphy and Murphy [2009] FMCAfam 270 .......................................................................... 15.130

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N ND and BM [2003] FamCA 469 .......................................................................................  13.140 Najjarin v Houlayce [1991] FLC 92-​246 ................................................................................. 10.105 Ngo and Ngo [2010] FamCA 1053 .....................................................................................  [10.110] Nguyen  v  Nguyen (1990) 169 CLR 245 ............................................................................... 23.165 Nixon and Jaw, In Marriage of [1992] FLC 92-​308 ................................................................. 14.100 Norbis v Norbis (1986) 161 CLR 513 ..................................................................  17.60, 17.470 Norman & Norman [2010] FamCAFC 66 ....................................................................  17.45, 17.155 Nuell, In Marriage of [1976] FLC 90-​031 ............................................................................... 11.125 Nutting, In Marriage of [1978] FLC 90-​410 ............................................................................. 14.60

O O'Dea & O’Dea (1980) FLC 90–​896, 75,648 ........................................................................... 16.40 O'Dempsey, In Marriage of [1990] FLC 92-​178 ...................................................................... 13.270 O'Hara and McGuinness, In Marriage of [1991] FLC 92-​220 .................................................. 13.145 Oakley and Cooper [2009] FamCAFC 133 .....................................................................  23.195 Oates and Crest (2008) FLC 93-​365 ......................................................................................... 14.10 Official Trustee in Bankruptcy v Edwards [1997] FLC 92-​763 .................................................. 10.110 Olliver, In Marriage of [1978] FLC 90-​499 .............................................................................. 17.300 Osferatu and Osferatu (2015) FLC 93-​666 at [20]-​[41] .........................................................  [9.150] Osman and Mourrali, In Marriage of [1990] FLC 92-​111 ........................................................ 10.105 Otway, In Marriage of [1987] FLC 91-​807 .............................................................................. 10.105

P P v P (1994) 181 CLR 583 ...................................................................................................... 21.285 P, Re [1997] FLC 92-​741 ........................................................................................................ 23.340 P and P [1995] FLC 92-​615 .................................................................................................... 21.290 Page and Page [1980] FamCA 79; (1981) FLC 91-​025 ............................................................. 16.40

Table of Cases

Page, In Marriage of [1987] FLC 91-​806 ................................................................................ 14.165 Palmer and Palmer [2012] FamCAFC 159 .............................................................................. 17.435 Pandelis and Pandelis [2018] FamCAFC 66 ............................................................................ 17.300 Pannell and Pannell [1996] FLC 92-​660 ................................................................................. 23.345 Park, In the Estate of [1954] P 89 ........................................................................................... 10.110 Pastrikos, In Marriage of [1980] FLC 90-​897 ...............................................................  17.40, 17.350 Patching, In Marriage of [1995] FLC 92-​585 ............................................................................ 15.80 Patrick, Re [2002] FLC 93-​096 ................................................................................................. 21.40 Pavey, In Marriage of [1976] FLC 90-​051 ............................................................. 11.40, 11.50 Pelerman, In Marriage of [2000] FLC 93-​037 ........................................................................... 15.80 Perrin & Perrin (No 2) [2018] FamCAFC 122 ......................................................................... 17.435 Peter and Elspeth [2009] FamCA 551 .................................................................................... 23.395 Petruski & Balewa (2013) 49 Fam LR 116 .............................................................................. 17.365 Pflugradt, In Marriage of [1981] FLC 91-​052 ...............................................................  18.135 Pierce, In Marriage of [1999] FLC 92-​844 .....................................................................  17.195 Pittman and Pittman (2010) FLC 93-​430 ............................................................................... 16.155 Polonius and York [2010] FamCAFC 228 .......................................................................  17.330 Price and Underwood [2008] FamCAFC 46 ........................................................  11.40, 11.75, 11.90 Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222 ........................................  9.135, 9.140, 9.150 Prior and Prior [2002] FLC 93-​105 ........................................................................................... 7.165 Pruchnik & Pruchnik (No 2) [2018] FamCAFC 128 ................................................................ 21.205

Q Quinn, Re: [2016] FamCA 617 ...............................................................................................  21.295  

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R R v Cook; Ex parte C (1985) 156 CLR 249 ................................................................................. 5.65 R v Dovey; Ex parte Ross (1979) 141 CLR 526 ..............................................................  16.50, 18.20 R v Hall (unreported, 1845) ....................................................................................................... 3.70 R v Lambert; Ex parte Plummer (1980) 146 CLR 447 ...................................................  5.115 R v O'Halloran; Ex parte Hamer [1913] VLR 116 ....................................................................... 9.135 R v Ross-​Jones; Ex parte Beaumont (1979) 141 CLR 504 ...............................................  5.140, 16.25 R v Ross-​Jones; Ex parte Green (1984) 156 CLR 185 ................................................................. 18.20 R v Spicer; Waterside Workers’ Federation of Australia, Ex parte (1957) 100 CLR 312 at 317 ................................................................................................ 17.50 R and R, Re [2000] FLC 93-​000 .............................................................................................. 23.450 RCB as Litigation Guardian of EKV, CEV, CIV and LRV v Hon Justice Colin James Forrest (2012) 247 CLR 304 ..................................................... 23.425, 23.430 Radmacher v Granatino [2010] 3 WLR 1367 .......................................................................... 15.130 Rand and Rand [2008] FamCAFC 50; FLC 93-​370 .........................................................  5.195, 18.35 Rennie and Higgon, In Marriage of [1981] FLC 91-​087 ............................................................ 16.25 Rewal, In Marriage of [1991] FLC 92-​225 .......................................................................  10.60 Rice and Asplund, In Marriage of [1979] FLC 90-​725 ............................................................. 24.190 Richardson and Richardson [2008] FamCAFC 107 ........................................................  15.30 Rickaby, In Marriage of [1995] FLC 92-​642 ............................................................................ 17.115 Robb, In Marriage of [1995] FLC 92-​555 ............................................................................... 17.240 Rouse, In Marriage of [1982] FLC 91-​226 ................................................................................ 14.85 Rowell, In Marriage of; Deputy Commissioner of Taxation (Intervener) [1989] FLC 92-​026 ........................................................................................................... 18.145 Ruane v Bachmann-​Ruane [2009] FamCA 1101 ..................................................................... 15.130 Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 ..............................   5.30, 5.65, 5.90 Russo v Aiello (2003) 215 CLR 643 .......................................................................................... 23.45

Australian Family Law in Context: Commentary and Materials

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S S v Australian Crime Commission (2005) 144 FCR 431 ............................................................ 23.45 S, In Marriage of [1980] FLC 90-​820 ................................................................................  10.90 Sam and Terry (Gender Dysphoria), Re (2013) 49 Fam LR 417 ............................................... 21.295 SG, Re (1968) 11 FLR 326 ...................................................................................................... 10.115 SPS v PLS (2008) 217 FLR 164 ............................................................................  24.195, 24.200 Sampson v Hartnett (No 10) [2007] FamCA 1365 ................................................................. 24.100 Scott (falsely called Sebright) v Sebright (1886) 12 PD 21 ....................................................... 10.70 SCVG & KLD (2014) FLC 93-​582 ........................................................................................... 23.155 Sean and Russell (Special Medical Procedures), Re [2010] FamCA 948 ................................... 21.290 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218; [1992] FLC 92-​293 .................  20.10, 21.265, 21.270,21.275, 23.75 Selen and Selen [2013] FamCAFC 39 ....................................................................................... 7.125 Semmens v Commonwealth [1990] FLC 92-​116 .................................................................... 18.145 Senior and Anderson [2011] FamCAFC 129 ........................................................................... 15.130 Sha & Cham [2017] FamCAFC 161 ......................................................................................... 19.65 Sharpless v McKibbin (2008) DFC 95-​414 .......................................... 17.205, 17.210, 19.115 Shaw (R and E), In Marriage of [1989] FLC 92-​010 ................................................................ 16.170 Shepherd v Federal Commissioner of Taxation (1965) 113 CLR 385 ........................................ 16.90 Sheridan, In Marriage of [1994] FLC 92-​517 .......................................................................... 23.395 Shewring, In Marriage of (1988) FLC 91-​926 ......................................................................... 17.200 Sigley and Evor [2011] FamCAFC 22 ..............................................................................  23.115 Simmons, In Marriage of [1991] FLC 92-​219 ..................................................................  9.130 Sinclair & Whittaker (2013) FLC 93-​551 .................................................................................. 19.70 Singerson and Joans [2014] FamCAFC 238 ............................................................................ 17.255 Sitwell [2014] FamCAFC 5 ....................................................................................................... 7.155 Smoje v Forrester [2017] NSWCA 308 ..................................................................................... 19.70 Smythe, In Marriage of [1983] FLC 91-​337 ............................................................................ 23.380 Snipper & James and Anor [2018] FamCA 7 .......................................................................... 18.170 Soblusky, In Marriage of [1976] FLC 90-​124 .......................................................................... 14.110 Sorochan v Sorochan (1986) 29 DLR 1 .................................................................................... 16.10 Soukmani, In Marriage of [1990] FLC 92-​107 ........................................................................ 10.105 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 ............................................... 17.360 Spanos, In Marriage of [1980] FLC 90-​871 ...................................................................  11.115 Spellson, In Marriage of; George & Janango Pty Ltd (Interveners) [1989] FLC 92-​046 ............ 18.100 SS v AH [2010] FamCAFC 13 ................................................................................................. 23.195 Stanford v Stanford (2012) 247 CLR 108 ............................................................ 16.10, 17.30 State Central Authority v McCall (1994) 18 Fam LR 307 ........................................................ 24.145 Stein, In Marriage of [2000] FLC 93-​004 .................................................................................. 14.85 Stein and Stein [1986] FLC 91-​779 ...................................................................................  18.55 Steinbrenner & Steinbrenner [2008] FamCAFC 193 ............................................................... 17.360 Steinmetz, In Marriage of [1980] FLC 90-​801 ........................................................................ 14.115 Steinmetz (No 2), In Marriage of [1981] FLC 90-​294 ............................................................. 11.155 Stephens v Stephens and Anor (Enforcement) [2009] FLC 93-​425 ......................................... 16.115 Stephens and Stephens (2005) FLC 93-​246 ........................................................................... 17.320 Sterry & Sterry [2017] FamCAFC 226 .................................................................................... 21.205 Suiker, In Marriage of [1993] FLC 92-​436 ................................................................................ 15.80 Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; (1989) VR 8 ....................................... 17.360 Szechter v Szechter [1971] P 286 ..................................................................................  10.70, 10.85

T T v F [1999] FLC 92-​855 ........................................................................................................ 21.265 T and L [2000] FLC 93-​056 ...................................................................................................... 9.155

Table of Cases

Taisha & Peng [2012] FamCA 385 ....................................................................................  19.75 Talbot v Talbot [1995] FLC 92-​586 ........................................................................................... 7.105 Tansell and Tansell (1977) FLC 90-​307 ..................................................................................... 16.40 Taxation, Federal Commissioner of v Worsnop (2009) 40 Fam LR 552 ....................................................................... 18.160, 18.165, 18.195 Teves and Campomayor [1995] FLC 92-​578 .......................................................................... 10.100 Thevenaz v Thevenaz [1986] FamCA 44; (1986) FLC 91-​748  ...............................................  [9.150] Thompson, In Marriage of (1977) 27 FLR 288 ....................................................................... 11.120 Thorne v Kennedy (2017) 250 ALR 1 ........................................................................  15.155, 17.365 Tibb & Sheean [2018] FamCAFC 142 .......................................................................  23.135, 23.160 Tobin, In Marriage of [1999] FLC 92-​848 ............................................................................... 13.145 Todd (No 2), In Marriage of [1976] FLC 90-​008 ...................................................................... 11.40 Tony, Re [2016] FamCA 936 .................................................................................................. 21.295 Toomey and Toomey [2008] FMCAfam 654 ............................................................................ 16.45 Townsend, In Marriage of [1995] FLC 92-​569 ........................................................................ 17.335 Trustee of the Property of Lemnos v Lemnos (2009) 223 FLR 53 .............................  18.190 Tryon and Clutterbuck [2007] FLC 93-​332 ............................................................................. 21.135 Tye, In Marriage of [1976] FLC 90-​028 .................................................................................... 11.90 Tyson v Tyson (1996) 70 ALJR 285 ......................................................................................... 14.130

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U U v U (2002) 211 CLR 238 ....................................................................................................... 23.75 Ulster and Viney [2016] FamCAFC 133 .................................................................................. 23.135 Union Label Case (1908) 6 CLR 469 .......................................................................................... 5.75 Unitingcare – Unifam Counselling & Mediation & Harkiss & Anor [2011] FamCAFC 159 ......................................................................................................... 8.100 Urban Affairs & Planning, Minister for v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 ........................................................................................................... 23.45

V VC and GC [2010] FLC 93-​434 .............................................................................................. 18.125 Van Rassel v Kroon (1953) 87 CLR 298 .................................................................................. 17.135 Vance and Carlyle FamCA 651 ........................................................................................  23.245 Vautin and Vautin [1998] FLC 92-​827 ...........................................................................  14.135 Vigano and Desmond [2012] FamCAFC 79 ............................................................................ 23.120 Vontek and Vontek [2017] FamCAFC 28 .................................................................................. 24.85 Voulis v Kozary (1975) 180 CLR 177 ...................................................................................... 17.135

W W v T [1998] FLC 92-​808 ........................................................................................................ 10.65 W v W [1972] AC 24; (1970) FLR Rep 619 ............................................................................. 21.145 W, In Marriage of [1980] FLC 90-​872 ..................................................................................... 17.270 W and W: Abuse Allegations, Re; Expert Evidence [2001] FLC 93-​085 ...................................... 8.100 W: Publication Application, Re [1997] FLC 92-​756 ........................................................  7.155, 24.65 WK v SR [1997] FLC 92-​787 ..................................................................................................... 24.25 Wacando v The Commonwealth (1981) 148 CLR 1 ................................................................. 23.45 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 ......................................................  7.105, 17.320 Wallace and Stelzer [2013] FamCAFC 199 ............................................................................. 15.130 Walliams & Mandrill [2018] FamCA 456 .................................................................................. 16.40 Wallis & Manning [2017] FamCAFC 14 .....................................................................  17.200, 17.365 Walton & Esposito [2016] FamCA 336 ................................................................................  [10.105] Warby and Warby [2001] FamCA 1469 ...........................................................................  7.120

Australian Family Law in Context: Commentary and Materials

Wardman and Hudson (Formerly Wardman), In Marriage of [1978] FLC 90-​466 ................................................................................................  16.160, 17.80 Waters and Jurek, In Marriage of [1995] FLC 92-​635 .................................... 17.265, 17.345 Watkins v Watkins (1952) 86 CLR 161 ...................................................................................... 11.70 Waugh and Waugh [2000] FLC 93-​052 ...........................................................................  16.55 Weir, In Marriage of [1993] FLC 92-​338 .......................................................................  16.180 Welch & Abney (2016) FLC 93-​756 ....................................................................................... 17.435 West and Green, In Marriage of [1993] FLC 92-​395 ............................................................... 17.435 Whiteley, In Marriage of [1992] FLC 92-​304 ................................................... 16.170, 17.225 Whiteoak, In Marriage of [1980] FLC 90-​837 ........................................................................... 11.40 Wild v Ballard [1997] FLC 92-​774 .......................................................................................... 13.165 Williams v Williams [1985] FLC 91-​628 .....................................................................  17.170, 17.300 Williams, In Marriage of [1984] FLC 91-​541 ........................................................................... 17.170 Williams and Williams [2007] FamCA 313 .............................................................................. 17.215 Williamson, In Marriage of [1978] FLC 90-​505 ....................................................................... 14.165 Willis, Ex parte [1997] FLC 92-​725 ......................................................................................... 10.115 Wilson, In Marriage of [1989] FLC 92-​033 ............................................................................... 14.85 Woodhead, In Marriage of [1998] FLC 92-​813 ......................................................................... 11.10 Wunderwald, In Marriage of [1992] FLC 92-​315 .................................................................... 16.120

Y

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Yamada and Cain [2013] FamCAFC 64 .................................................................................. 23.375 Yanner v Eaton (1999) 201 CLR 351 ...................................................................................... 16.115 Yemshaw (Appellant) v London Borough of Hounslow [2011] UKSC 3 ....................................... 6.55 Yunghanns v Yunghanns [1999] FLC 92-​836 ........................................................................... 18.20

Z Zabaneh, In Marriage of (1986) FLC 91-​766 .......................................................................... 24.200 Zalewski and Zalewski (2005) FLC 93-​241 ............................................................................... 17.75 Zappacosta, In Marriage of (1976) 26 FLR 412 ...................................................................... 17.135 Zaruba & Zaruba [2017] FamCAFC 91 ..................................................  17.35, 17.75, 17.155 Zorbas, In Marriage of [1990] FLC 92-​160 ............................................................................... 16.95 Zoumaris & Paradisio [2008] FamCA 688 .............................................................................. 10.105 Zubcic, In Marriage of [1995] FLC 92-​609 ....................................................................  17.175 Zyk, In Marriage of [1995] FLC 92-​644 .............................................................  17.70, 17.125

TABLE OF STATUTES COMMONWEALTH Bankruptcy Act 1966: 18.175

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Bankruptcy and Family Law Legislation Amendment Act 2005: 18.175 Child Support (Assessment) Act 1989: 7.10, 13.55, 13.200, 13.230, 21.10 s 4: 13.115 s 4(3): 13.235 s 5: 13.90, 13.125, 21.10 s 35: 13.75 s 43: 13.55 s 46: 13.75 s 79: 13.225 s 80C: 13.235, 13.245 s 80C(2)(c): 13.245 s 80D: 13.235 s 80E: 13.235 s 80E(2): 13.235 s 80G(1)(d): 13.235 s 80G(1)(e): 13.235 s 95: 13.235 s 100: 21.135 s 106A: 13.145 s 116(1)(b): 13.155 s 117: 13.160, 13.185, 13.205 s 117(5): 13.180 s 117(7B): 13.180 s 117(10): 13.70, 13.180, 13.305 s 118: 13.195, 13.205 s 123A: 13.205 s 124: 13.205 s 125: 13.205 s 136: 13.235 Pt 6A: 13.155 Pt 7, Div 4: 13.150 Pt 7, Div 5: 13.150, 13.205 Sch 1: 13.80 Child Support (Registration and Collection) Act 1988: 7.10, 13.250 s 24A(1): 13.250 s 30: 13.250 s 30A: 13.250 s 38A: 13.250 s 38B: 13.250 ss 79D to 87A: 13.230 Pt VIIA: 13.155 Pt IV: 13.250 Children and Young Persons (Care and Protection) Act 1998: 21.285

Constitution of the Commonwealth of Australia: 5.20 s 3: 5.200 s 51: 5.10, 5.15 s 51(xxi): 5.85 s 51(xxxvii): 5.95, 5.200 s 52: 5.10 s 71: 7.10 s 77(i): 7.110 s 92: 5.125, 5.130, 5.135 s 107: 5.10 s 109: 5.10, 5.125, 5.130 s 116: 23.395 s 122: 5.10, 5.75 s 128: 5.10 Crimes Legislation Amendment (Slavery, Slavery-​like Conditions and People Trafficking) Act 2013: 10.95 Criminal Code Act 1995: 10.95 s 270.7A: 10.105 Disability Services and Guardianship Act 1987: 21.285 Domestic Relationships Act 1994: 1.135 Evidence Act 1995: 9.170 s 101: 24.25 s 128: 16.185 s 131: 8.180 s 131(1): 8.180 s 140: 24.25 Family Court Act 1997: 5.105 Family Law Act 1975: 0.10, 0.20, 1.110, 2.05, 3.120, 3.145, 5.10, 5.65, 5.75, 5.90, 5.105, 5.115, 5.120, 5.140, 6.60, 6.85, 6.130, 6.150, 7.05, 7.10, 7.20, 7.25, 7.40, 7.80, 7.85, 7.95, 7.105, 7.130, 7.155, 8.05, 8.50, 8.140, 9.55, 10.50, 11.05, 11.40, 11.135, 13.125, 13.135, 13.145, 13.155, 13.245, 13.260, 13.305, 14.05, 14.10, 14.100, 14.170, 15.10, 15.15, 15.25, 15.95, 16.05, 16.10, 16.20, 16.50, 16.90, 16.105, 16.120, 16.135, 16.175, 17.05, 17.185, 17.205, 17.250, 17.310, 17.370, 18.10, 18.20, 18.75, 18.175, 19.30, 19.50, 19.95, 19.110, 21.05, 21.10, 21.15, 21.30, 21.40, 21.55, 21.75, 21.135, 21.180, 21.240, 21.250, 21.285, 22.10, 22.140, 22.150, 23.55, 23.75, 23.200, 23.320, 24.85, 24.205, 24.215, 24.220 Part VIII: 8.215

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Australian Family Law in Context: Commentary and Materials

Family Law Act 1975 — cont Part VIIIA: 8.215 Part VIIIAB: 8.215 s 4: 6.95, 16.20, 16.25, 16.80, 21.10, 21.15, 21.210 s 4(1): 5.145, 10.30, 16.30 s 4(2): 10.35 s 4(e): 16.25 s 4(ca): 16.20, 16.25 s 4(ca)(i): 16.25 s 4AA: 5.200, 19.30 s 4AA : 19.95 s 4AA(1)(c): 19.45 s 4AA(5)(b): 10.50, 19.45 s 6: 10.50 s 9(3): 6.70 s 9(3)(b): 6.70 s 10: 5.110 s 10(2): 5.110 s 10(3): 5.110 s 10D: 8.100 s 10D(3): 8.100 s 10E: 8.100 s 10F: 8.50 s 10G: 8.150 s 10J: 8.100 s 11C: 8.185 s 13E(2): 8.215 s 13J: 8.215 s 21(2): 7.10 s 21A: 7.15 s 22(2)(b): 7.35, 7.75 s 26A: 7.60 s 34: 7.105 s 39(2): 7.130 s 39(3): 11.10 s 39(4): 11.10 s 39(6): 7.130 s 39(6)(d): 7.130 s 39(7AA): 7.130 s 39(7AAA): 7.130 s 39A(5): 19.110 s 41(1): 7.80 s 42(2): 10.50 s 43: 10.90, 17.240, 19.70 s 44: 11.10, 15.15, 16.20 s 44(1A): 11.10 s 44(1B): 11.125 s 44(1C): 11.125 s 44(3): 14.10, 15.15, 16.25 s 44(4): 15.15 s 44(4)(a): 15.25 s 44(4)(b): 14.10, 15.25 s 44A: 7.130 s 46(1): 7.130 s 48(3): 11.120 s 49(2): 11.40 s 50: 11.100, 11.120 s 50(1): 11.110 s 50(2): 11.110

s 51: 10.45 s 51 (xxi and xxii): 5.155 s 55: 11.10 s 55(2): 11.10 s 55A: 11.10, 11.20, 11.30 s 57: 11.10 s 58: 11.10 s 59: 11.10 s 60B: 20.20, 20.65, 20.70, 23.110 s 60B(1): 23.35 s 60B(3): 23.340 s 60B(4): 20.70 s 60G: 5.125, 21.15, 21.25 s 60H: 2.105, 21.10, 21.30, 21.40, 21.45, 21.55 s 60H(3): 21.55 s 60I: 6.05 s 60K: 6.150 s 60CA: 21.135, 22.05 s 60CC: 20.05, 23.80, 23.90, 23.95, 23.105, 23.110, 23.200, 23.215, 23.340 s 60CC(2A): 23.90 s 60CC(2): 20.20, 23.35, 23.80 s 60CC(3): 23.80, 23.90 s 60CC(3)(c): 23.90 s 60CC(3)(d): 23.355 s 60CC(3)(i): 23.90 s 60CC(3)(j): 23.220 s 60CC(3)(ca): 23.90 s 60CC(6): 23.340 s 60CF: 6.70 s 60CG: 6.70, 24.205, 24.215 s 60CI: 24.65 s 60HB: 21.30, 21.75 s 61B: 21.250 s 61C: 21.180, 21.190, 21.230, 21.240, 21.255 s 61D: 21.265 s 61F: 23.325 s 61DA: 21.190 s 61DA(4): 21.200 s 62G: 7.85 s 63DA: 23.20 s 64B: 21.135 s 64B(2)(h): 23.55 s 64C: 23.365 s 65C: 23.65, 23.365 s 65F: 8.185 s 65L: 23.420 s 65Y(2): 24.70 s 65DAA: 20.05, 23.180, 23.355 s 65DAA(5): 23.180 s 65DAA(6): 23.180 s 65DAB: 23.490 s 65DAC: 21.210 s 65DAC(4): 21.240 s 66D: 13.295 s 66E: 13.255 s 66G: 13.255 s 66L: 13.60

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Table of Statutes

Family Law Act 1975 — cont s 66M: 13.295 s 67L: 23.75 s 67V: 23.75 s 67Z: 24.65 s 67ZA: 24.65 s 67ZC: 21.285, 21.290, 23.55 s 67ZC(2): 21.285, 23.75 s 67ZBA: 23.205 s 67ZBB: 6.150, 23.205 s 68B: 21.250, 21.285 s 68F: 24.225 s 68L(3): 23.425 s 68P: 6.70, 24.215 s 68P(2): 24.215 s 68Q: 6.70 s 68R: 6.70, 24.220, 24.230 s 68S: 24.230 s 69B(1): 5.135 s 69B(2): 5.135 s 69C: 23.65 s 69E: 13.260 s 69J: 7.130 s 69N: 7.130 s 69P: 21.120 s 69Q: 21.120 s 69V: 21.135 s 69W: 21.135 s 69ZE: 5.105 s 69ZJ: 5.105, 7.130 s 69ZK: 5.115, 21.285, 24.60 s 69ZM: 8.200 s 69ZN: 8.200 s 70C: 21.250 s 71: 10.35 s 71A: 15.85 s 72: 14.50, 14.65, 14.105, 14.140 s 74: 14.70, 14.120 s 75(1): 14.70 s 75(2): 1.110, 5.155, 14.10, 14.60, 14.70, 14.80, 14.95, 14.105, 16.75, 16.135, 17.20, 17.40, 17.80, 17.140, 17.155, 17.320, 17.340, 17.350, 17.355, 17.385, 17.470, 17.475 s 75(2)(a): 14.85 s 75(2)(b): 14.85, 16.75 s 75(2)(c): 14.100 s 75(2)(d): 14.70, 14.85, 14.100 s 75(2)(e): 14.100 s 75(2)(f): 14.85, 17.20, 17.370 s 75(2)(g): 14.85 s 75(2)(h): 14.70, 14.85 s 75(2)(j): 14.70, 14.105, 17.20, 17.370 s 75(2)(k): 14.70, 14.105 s 75(2)(l): 14.100 s 75(2)(m): 14.85 s 75(2)(n): 14.100 s 75(2)(o): 14.70, 14.85, 14.110, 14.115, 17.115, 17.240, 17.310 s 75(2)(ha): 14.100

s 75(2)(na): 14.100 s 75(3): 14.85 s 76: 5.145 s 77: 14.155 s 77A: 14.10, 17.350 s 78: 16.20 s 78(1): 16.20 s 78(2): 16.20 s 79: 1.110, 5.140, 5.145, 7.125, 14.110, 15.10, 15.60, 15.150, 5.155, 15.165, 16.05, 16.10, 16.20, 16.25, 16.45, 16.50, 16.70, 16.75, 16.90, 16.95, 16.105, 16.160, 17.35, 17.40, 17.80, 17.90, 17.155, 17.160, 17.240, 17.280, 17.300, 17.305, 17.310, 17.320, 17.360, 17.460, 17.470, 18.05, 18.20, 18.125, 18.140, 18.145, 18.155, 18.175, 18.200, 18.210 s 79(1): 16.75, 18.200 s 79(2): 17.25 s 79(4): 5.145, 17.35 s 79(4)(a): 17.20, 17.95 ss 79(4)(a) to (c): 17.20 s 79(4)(b): 17.20, 17.95 s 79(4)(c): 17.115, 17.215, 17.245 s 79(4)(d): 17.460 ss 79(4)(d) to (g): 17.20 s 79(4)(e): 14.10, 16.75, 17.20, 17.340 s 79(4)(f): 17.450, 17.460 s 79(9): 8.180 s 79A: 15.55, 15.60, 15.70, 15.80, 16.45, 18.145 s 80: 14.10 s 81: 14.10, 15.15 s 82: 14.180 s 82(4): 14.180 s 83: 14.195 s 85: 5.170, 18.105, 18.125, 18.140 s 85(3): 5.170, 18.125 s 85A: 16.75, 18.40, 18.65, 18.75, 18.85, 18.90 s 86: 15.10 s 87: 15.10, 18.125, 18.145 s 87(8): 18.145 s 90B: 15.95, 15.115 s 90C: 15.95, 15.115 s 90D: 15.95, 15.115 s 90F: 15.110 s 90G: 15.115, 15.75, 15.130 s 90G(1A): 15.75 s 90K: 15.115, 15.140 s 90AE: 5.185 s 90AE(2)(b): 18.100 s 90AE(3): 18.35 s 90AE(4): 18.35 s 90DA: 15.100, 15.110 s 90MC: 16.120 s 90MH: 15.135 s 90MO: 15.135 s 90MR: 15.135

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Australian Family Law in Context: Commentary and Materials

Family Law Act 1975 — cont s 90MT: 17.395 s 90MT(2): 17.390 s 90MU: 17.420 s 90RC : 19.120 s 90RG : 19.30 s 90SA: 15.85 s 90SB: 19.30, 19.35, 19.95 s 90SD : 19.30 s 90SK : 19.30 s 90SL: 16.20 s 90SM: 16.05, 16.10 s 90UA : 19.30 ss 90UB to 90UD: 15.85 s 93A: 23.75 s 98A: 11.10 s 106A: 8.215 s 106B: 5.170, 16.50, 16.75, 18.105, 18.125, 18.130 s 106B(3): 5.170 s 114: 5.180, 6.60, 16.05, 16.10, 16.30, 16.45, 16.50 s 114(1): 16.30 s 114(1)(b): 16.35 s 114(1)(f): 16.35 s 114(2A): 16.30, 16.35 s 114(3): 16.30 s 114AA: 6.60 s 117: 23.420 s 121: 7.135, 7.155, 24.80 Pt III: 7.85 Pt VII: 0.10, 5.105, 7.130, 9.55, 20.05, 20.35, 20.65, 20.70, 21.125, 21.135, 23.05, 23.10, 23.25, 23.75, 23.110, 23.340, 24.05 Pt VII, Div 7: 13.255 Pt VII, Div 12: 21.110 Pt VII, Div 12A: 8.200 Pt VIII: 13.255, 14.100, 14.110, 14.115, 15.75, 15.85, 15.115, 16.05, 19.30 Pt VIIIA: 15.10 Pt VIIIAA: 5.185, 7.105, 18.25, 18.100, 19.30 Pt VIIIAB : 19.30 Pt VIIIB: 15.10, 15.135, 19.30 Family Law Amendment Act 2000: 15.10, 15.75, 18.105 Family Law Amendment Act 2003: 5.185, 15.75, 18.25, 23.480 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008: 2.10, 2.105, 19.05, 19.15, 19.30, 21.30 Family Law Amendment (Shared Parental Responsibility) Act 2006: 8.140, 23.05, 23.45 Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010: 23.180

Family Law (Child Abduction Convention) Regulations 1986: 24.145 Family Law (Family Dispute Resolution Practitioners) Regulations 2008: 8.55 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011: 6.85, 20.70, 23.20, 23.90 Family Law Legislation Amendment (Superannuation) Act 2001: 15.135, 16.120, 17.370 Pt VIIIB: 17.370, 17.435 Family Law Reform Act 1995: 21.05, 21.180, 23.55, 23.200, 23.275 s 5: 21.10 s 43: 23.200 s 60B(1)(a): 21.10 s 60CC(2): 23.200 s 60CC(2)(a): 21.10 s 60CC(5): 23.480 s 61C: 21.10 s 65C: 21.10 s 65DAA(6): 23.480 Pt VII: 23.200 Family Law Regulations 1984 reg 10A: 7.130 Family Law Rules s 100A: 23.450 Ch 15: 23.450, 23.475 Rule 26B.01(1): 8.215 Family Law Rules 2004: 11.10 r 1.05: 8.165 r 8.03: 9.135 r 12.03: 8.180 r 12.07: 8.180 Sch 1: 8.165 Family Law (Superannuation) Regulations 2001: 17.390 Federal Circuit Court Rules 2001 r 10.05: 8.180 Federal Circuit Court of Australia Act 1999: 7.65 s 10(2): 13.230 s 18: 7.95 Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009: 13.245, 15.75, 15.130 Jurisdiction of Courts (Cross-​vesting) Act 1987: 7.105 s 4(1): 7.105 s 5: 7.105 s 6: 21.25 Marriage Act 1958 ss 72 to 75: 3.90

Table of Statutes

Marriage Act 1961: 0.20, 5.10, 5.65, 5.70, 5.75, 7.10, 10.30, 10.50, 10.105 s 5: 10.10 s 11: 10.115 s 12: 10.115 s 12(2)(b): 10.115 s 22: 10.50 s 23: 10.45, 10.50 s 23B: 10.30, 10.45, 10.50 s 23B(1): 10.45, 10.110 s 23B(2): 10.50 s 48: 10.155 s 88C: 10.50 s 88D: 10.50 s 88D(3): 10.125 s 88EA: 10.50 s 94: 10.50 Matrimonial Causes Act 1959: 2.05, 3.90, 3.135, 7.10 s 86(2): 18.75 Northern Territory (Self-​Government) Act 1978 s 49: 5.130 Privacy Act 1988: 8.100 Relationships Act 2008 s 39: 1.120 s 41: 1.120 Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Sex Discrimination Amendment Act 1991: 10.115

AUSTRALIAN CAPITAL TERRITORY Civil Partnerships Act 2008: 19.95 Domestic Relationships Act 1994: 1.100 s 15: 1.110 s 19(2): 1.110 Domestic Violence and Protection Orders Act 2008 s 13(1): 6.75 Marriage Equality (Same Sex) Act 2013: 5.70, 5.75

NEW SOUTH WALES Commonwealth Powers (Family Law –​Children) Act 1986: 5.100 Crimes (Domestic and Personal Violence) Act 2007: 6.75 s 13: 6.75 De Facto Relationships Act 1984: 10.110, 19.10 Family Law Act 1975 s 79: 16.185 Married Women's Property Act 1893: 3.115 Matrimonial Causes Act 1873: 3.80

Matrimonial Causes Act Amendment Act 1881: 3.80 Minors (Property and Contracts) Act 1970 s 49: 21.255 New South Wales Professional Conduct and Practice Rules 2013 r 11: 9.135 Property (Relationships) Act 1984: 19.10 s 5: 1.100 s 20: 1.100, 17.205 Surrogacy Act 2010: 21.70 s 30: 21.70

QUEENSLAND Children’s Services Act s 49: 5.110 s 58: 5.110 s 62(1)(g): 5.110 s 62(1)(i): 5.110 s 62(5): 5.110 s 63(2): 5.110 s 64(1): 5.110 Pt VI: 5.110 Commonwealth Powers (Family Law –​Children) Act 1990: 5.105 Fauna Conservation Act 1974 s 7(1): 16.115 Married Women's Property Act 1890: 3.115 Matrimonial Causes Jurisdiction Act 1864: 3.80

SOUTH AUSTRALIA Commonwealth Powers (Family Law) Act 1986: 5.105 Married Women's Property Act 1883: 3.115

TASMANIA Commonwealth Powers (Family Law) Act 1987: 5.105 Family Violence Act 2004: 6.75 Married Women's Property Act 1883: 3.115 Matrimonial Causes Act 1860: 3.80 Relationships Act 2003: 1.150, 19.95 s 3: 1.100 s 4: 1.150 s 5: 1.100, 1.150 s 6: 1.100, 1.150 s 36: 1.100

Australian Family Law in Context: Commentary and Materials

VICTORIA Commonwealth Powers (Family Law –​Children) Act 1986: 5.105

Marriage Act 1836: 3.65

Divorce Act 1889: 3.90

Married Women's Property Act 1882: 3.115

Divorce and Matrimonial Causes Act 1861: 3.80

Matrimonial Causes Act 1857: 3.80, 3.90 s 27: 3.80

Family Violence Protection Act 2008 s 5: 6.75 s 7: 6.75

Matrimonial Causes Act 1973 s 41: 11.30

Marriage Act 1958: 3.90

Statute of Frauds: 15.15

Married Women's Property Act 1884: 3.115

TREATIES AND CONVENTIONS

Relationships Act 2008: 10.20, 19.95 s 5: 19.95, 19.100

WESTERN AUSTRALIA Commonwealth Powers (De Facto Relationships) Act 2006: 19.10 Family Court Act 1997: 19.05 Married Women's Property Act 1892: 3.115 Matrimonial Causes Ordinance 1863: 3.80

NEW ZEALAND Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

Lord Hardwicke's Marriage Act 1753: 3.40, 3.50, 3.65

Care of Children Act 2004 s 60: 23.215 s 61: 23.215

UNITED KINGDOM AND IMPERIAL Children Act 1989: 9.55 s 1(5): 4.130, 9.55

Convention for the Protection of Human Rights and Fundamental Freedoms: 1.75 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages: 10.80 Hague Convention on the Civil Aspects of International Child Abduction: 23.425, 24.120–​24.140 United Nations Convention on the Rights of the Child: 5.35, 20.40, 20.60, 20.70 Art 3(1): 20.65 Art 5: 20.65 Art 7: 20.65 Art 7.1: 21.160 Art 8(2): 20.65 Art 9(3): 20.65 Art 11: 20.65 Art 12: 20.65 Art 14: 23.395 Art 30: 23.340 Art 35: 20.65

THE FAMILY IN CONTEXT Chapter 1: What is Family?����������������������������������������������������������������������   3

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PART 1

Chapter 2: Family Forms and Family Behaviours��������������������������������   31

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CHAPTER 1

What is Family? [1.10] [1.40] [1.60] [1.90] [1.100]

DEFINING FAMILY........................................................................................................... 3 [1.15] Family Impact Statement Guidelines......................................................... 3 [1.30] What Makes an Australian Family?........................................................... 5 PERSPECTIVES ON THE FAMILY........................................................................................ 7 [1.50] Family Fragments?................................................................................ 7 THE POST-​SEPARATION FAMILY..................................................................................... 13 [1.65] Family Law and the Indissolubility of Parenthood....................................... 13 [1.80] Keegan v Ireland................................................................................ 16 LIVING APART TOGETHER.............................................................................................. 18 [1.90] Living-​apart-​together (LAT) Relationships in Australia................................. 18 BEYOND FAMILY: THE RECOGNITION OF PERSONAL RELATIONSHIPS.......................... 21 [1.105] Domestic Relationships Act 1994 (ACT), s 3.................................................. 21 [1.115] Domestic Relationships Act 1994 (ACT), ss 15, 19..................................... 22 [1.130] Context and Inclusivity in Canada’s Evolving Definition of the Family.............. 23 [1.145] Family Law and Personal Life................................................................. 26 [1.155] Friends With Benefits?.......................................................................... 27

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[1.05]  Ideas about what is “family” or what “family” should be are central to many “family

law” decisions. They influence, for example, legislators and policy makers who have to determine what relationships should give rise to an entitlement to claim property and maintenance from another party. Beyond these traditional areas of “family law”, decisions in the areas of immigration, taxation, social security, child welfare, succession, industrial relations, international law and many more, will often turn upon ideas of what is “family”. Indeed, it is more often in these latter contexts that legislation explicitly uses the term “family”, and attempts to define it. For traditional “family law”, on the other hand, the ideas are usually less explicit.

DEFINING FAMILY [1.10]  In the past decade in particular, there has been an expansion in the categories of rela-

tionship that can be described as a “family”. Consider, for example, the following list provided to public servants by the federal Department of Prime Minister and Cabinet, in Family Impact Statement Guidelines.

Family Impact Statement Guidelines [1.15]  Department of the Prime Minister and Cabinet, Family Impact Statement Guidelines (2009) (http://​www.dpmc.gov.au/​guidelines/​familyimpactstatements/​docs/​family_​impact_​statement_​ guidelines.pdf) Family types and vulnerabilities Different types of families and families at different points in their life have different needs and different vulnerabilities. It is important to consider these needs and vulnerabilities when determining how beneficial or detrimental an impact would be.

Australian Family Law in Context: Commentary and Materials

Family Impact Statement Guidelines cont. Types of families can include: • families with dependent children • single-​parent families • families with caring responsibilities • older couple families • couple-​only families • step or blended families • multigenerational families • persons living alone with family elsewhere. Couples include same-​sex partners. Different points in the family life-​cycle can include: • forming couples • having babies • raising children • caring for adolescents • caring for an ageing partner • caring for ageing parents • young adult transitions and leaving home • separation or loss of a partner Copyright © 2018. Thomson Reuters (Professional) Australia Pty Limited. All rights reserved.

• retiring from the workforce. Disadvantaged and at-​risk families may be more vulnerable than other family types, and may include: • low-​income families • jobless families with children • Indigenous families • single-​parent families • families with children or adults with special needs • families from different cultural and linguistic backgrounds • families caring for a person with a disability or chronic ill health, or of frail old age • homeless families or those in precarious housing situations • families in which child safety is a concern • families in which parents have an issue of mental health or substance use.

 [1.20] 

Notes&Questions

1.

What do you think of this list of types of family? Do you agree that a person living alone with family elsewhere could be described as a family?

2.

Do you think a mother and father who have separated or divorced should still be seen as a “family”? Does it matter whether the child or children are under 18?

3.

Why does it matter how we define family?

What is Family?  Chapter  1

4.

Does the definition of the family for legal purposes depend upon the context of its application? In some cases, being a member of a “family” might confer important benefits; for example, the right to migrate to Australia with a family member who satisfies the entry criteria, or the right to compensation resulting from the other person’s accidental death. In other cases, it might be the source of liabilities; for example, the liability to pay maintenance after a breakdown of the relationship. Consider whether the interests of taxpayers also should be considered in defining the family for the purposes of various publicly funded benefits.

5.

For further general reading see P McDonald, Families in Australia: A Socio-​Demographic Perspective (Australian Institute of Family Studies, Melbourne, 1995), Ch 2 and J Dolgin, Defining The Family: Law, Technology and Reproduction in an Uneasy Age (New York University Press, New York, 1997).

6.

Do you think people in polygamous marriages should be recognised as a family for the purposes of Australian law? If not, why not? On this issue, see P Parkinson, “Taking Multiculturalism Seriously:  Marriage Law and the Rights of Minorities” (1994) 16 Sydney Law Review 473.

  

[1.25]  The following extract indicates how Australians define family.

What Makes an Australian Family?

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[1.30]  A Evans and E Gray, “What Makes an Australian Family?” in S Wilson et al (eds), Australian Social Attitudes: The First Report (UNSW Press, Sydney, 2005) pp 13-​14, 17-​18. We investigate the extent to which Australians view married and cohabiting couples as families, how the presence of children influences their judgment of the relationships that make a family, and attitudes about same-​sex relationships… The Australian Survey of Social Attitudes 2003 asks respondents about which types of relationships they include in their definition of a family. The leading question is: “Generally speaking, which of the following living arrangements would you consider to be a family today?” Respondents are asked about a married couple without children, a married couple with children, an unmarried couple without children, and an unmarried couple with children. The response options allow us to establish the relative importance of marriage and the presence of children in respondents’ views about what living arrangements constitute a family… marriage is an in important defining criterion of the family in Australia: a majority (63 per cent) of respondents agree that a married couple without children is a family, while only 32 per cent agree that an unmarried couple without children is a family. Women (36 per cent) are more likely than men (29 per cent) to agree that an unmarried couple without children is a family. Agreement also decreases with age: younger people are also more likely to agree that an unmarried couple without children is a family (34 per cent among 18-​34 year olds), while respondents aged 65 and over are least likely to agree (23 per cent). Marriage is important, but Australians are even more likely to agree that couples are families if they have children. There is almost universal agreement that a married couple with children is a family, with little variation for sex and age of respondent. However, a majority of respondents also agree that unmarried couples with children are families (79 per cent), although men (77 per cent) and older respondents (56 per cent) are less likely to agree. Significantly, the proportion of respondents agreeing that unmarried couples with children are families is actually higher (79 per cent) than the proportion who agree that a married couple without children is a family (63 per cent). These findings suggest that the presence of children is more important than marital status alone to the way respondents define the family. It seems that only older respondents remain strongly attached to marriage as defining the meaning of family…

Australian Family Law in Context: Commentary and Materials

What Makes an Australian Family? cont. Focusing on attitudes to unmarried couples without children, we estimate that 31 per cent of people agree that this living arrangement makes a family. But responses vary widely. Women are more likely to say an unmarried couple without children is a family than are men (35 per cent, compared to 27 per cent). Age also matters, with those aged 65 and over being least likely to say that this type of couple makes a family (25 per cent), while 34 per cent of respondents aged 35-​49 years agree. Marital status makes a big difference to attitudes: respondents who are cohabiting themselves are most likely to agree that an unmarried couple makes a family (47 per cent), falling to 30 per cent among married respondents… We have seen that AuSSA 2003 respondents are much more likely to define couples with children as a family than they are couples without children. So do they consider a single-​parent household to be a family? A large majority (74 per cent) do. This proportion is greater than the percentage who agree that married or cohabiting couples without children make a family, but lower than the percentage who agree that married or cohabiting couples with children are a family.

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Again, we see that men are more conservative than women on this question. Thus, men are less likely to recognise a single-​parent household as a family (69 per cent, compared to 78 per cent of women)… [W]‌here do same-​sex couples fit? Do Australians see them as families too? Evidence from AuSSA 2003 suggests that some do, but also that opinion is much more divided on same-​sex relationships than on other household arrangements…only 20 per cent of AuSSA 2003 respondents agree that a same-​sex couple is a family, but, in line with findings on other relationships, the presence of children makes a big difference: about 42 per cent of respondents agree that same-​sex couples with children make a family. Again, women are more likely than men to agree that same-​sex couples with children are a family and so are the young (65 per cent of those aged 18-​34 agree, compared to just 14 per cent of those aged 65 and over).

 [1.35] 

Notes&Questions

1.

What do you think is the difference between a “couple” and a “family”? Do you think it matters whether we define a childless couple as a “family”? If so, why?

2.

Why do you think that nearly twice as many respondents agree that a married couple without children is a family, compared to those who think that an unmarried couple without children is a family?

3.

Why do you think men’s views might be more conservative than women’s on the definition of family?

4.

For historical and sociological insights into the meaning of “family” see M Gilding, The Making and Breaking of the Australian Family (Allen & Unwin, Sydney, 1991). See also M Gilding, Australian Families: A Comparative Perspective (Longman, Melbourne, 1997), Chaps 1 and 2.

5.

Why is the definition of “the family” contested at the socio-​political level by groups reflecting different ideological viewpoints? See further B Berger and P Berger, The War Over the Family: Capturing the Middle Ground (Hutchinson, London, 1983).

  

What is Family?  Chapter  1

PERSPECTIVES ON THE FAMILY [1.40] When asked to define “family”, many people give a definition of what they think

“family” ought to be, rather than what it actually is. It is often extremely hard to disentangle the normative (ought) from the descriptive (is) in the ways people use the term “family”. For example, some feminist commentators regard “the family” as the major site of women’s oppression, although such statements of “grand truth” have been rejected by post-​modern feminists. Conservative commentators are more likely to describe “the family” in terms like “a haven in a heartless world” or “the fundamental building block of society”. Both would be likely to be using the term descriptively in a fairly narrow sense here: the nuclear heterosexual family. Feminist commentators have been at the forefront of attempts to broaden definitions of “family” beyond the narrow sense in which it has traditionally been used precisely because of what they may see as oppression within nuclear heterosexual families. Lesbian and gay commentators have also been involved in broadening attempts to redefine the family, and at the present time, the major debates are about same-​sex marriage. Questions about how we view “the family” are relevant to an understanding of family law because much of the law is built around, and put into operation on the basis of, certain assumptions about what families are and do. [1.45] In Family Fragments? (Polity Press, Cambridge, 1999) the prominent feminist sociol-

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ogist Carol Smart and her co-​author Bren Neale contextualise their study of post-​separation parenting practices among a group of parents in the United Kingdom by providing an overview of sociological writing about “the family”. In the following extract, they overview what they call the “sociological rediscovery of ‘the family’ ” in the mid-​1990s.

Family Fragments? [1.50]  C Smart and B Neale, Family Fragments? (Polity Press, Cambridge, 1999) pp 6-​19. The contributions of Giddens, and Beck and Beck-​Gernsheim Giddens and The Transformation of Intimacy (1992) Giddens’ work on intimacy can be seen as a development from his work on the self and society in the late modern age. This work was of a broad scope, seeking to answer questions about the nature of society in late modernity and, most especially, to understand the significance of human agency in the construction of the self and modern society. Giddens has, of course, been foremost in rediscovering the concept of the self for sociology and in incorporating human perceptions into an understanding of the process of change. Central to his thesis has been the idea of the reflexive self, which he sees as a defining element of late modernity, as well as part of the explanation of the nature of change in modern society. Thus practices of the self are seen as possible only because of social and cultural conditions available in the twentieth century, but at the same time once the reflexive self has an existence it acts, reinterprets and seeks to re-​order social life. This focus on the self, the production of narratives of the self (as a way of giving meaning to modern life) and the search for ontological security among massive (global) social change, brings Giddens directly to the spheres of intimacy and personal life while still understanding these fields in relation to wider concepts like globalization, post-​industrialism, history or chaos. It is interesting that he rarely uses the term “family” and, when he does, it is often in the context of discussing the work or framework of other authors rather than using the term as one that is meaningful to his own analysis. Perhaps this is because the very term “family” can push one back into an older sociological paradigm of precisely the sort that Giddens’ work seeks to transcend. Once we invoke the concept of “the family”, we are back in an old-​style structuralism in which the family is one institution among others, although less important, and where it seems to denote the private sphere rather than the

Australian Family Law in Context: Commentary and Materials

Family Fragments? cont. public sphere. Once we invoke “the family”, we invoke a lot of baggage that we then need to free ourselves from, most particularly the divide between private and public lives or selves. Giddens avoids having to perform these laborious disengagements by talking of intimacy, child-​parent relationships, sexuality, the body and so on. Thus one of the major achievements of his work is that it permits us always to see the individual as imbued with history, culture, language and the social, while the social is always the product of human agency. It is through this approach that “the family” (which is location, experience, kinship as well as ideological construct) returns to the mainstream sociological agenda. It is impossible to talk of the self and agency adequately if bits of the social are parcelled up and put aside. It is unimaginable that we could understand the production of the self without exploring intimate relationships just as it would be without addressing language or cultural inheritance, the organization of labour or the distribution of health and welfare. Thus in a stroke, so to speak, what was once defined as the private sphere has no boundaries to define it separately from the public sphere. Conceptual frameworks which kept “the family” apart from the real concerns of sociologists simply evaporate and in retrospect seem incredibly trivial. In The Transformation of Intimacy (1992) Giddens develops, in a popular form, ideas present in his earlier Modernity and Self-​identity (1991). In particular he expounds upon his notions of the pure relationship and confluent love. By pure relationship he means: a social relationship [which] is entered into for its own sake, for what can be derived by each person from a sustained association with another; and which is continued only in so far as it is thought by both parties to deliver enough satisfactions for each individual to stay within it. And in explaining confluent love he states:

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Confluent love is active, contingent love, and therefore jars with the “for-​ever”, “one-​and-​ only” qualities of the romantic love complex. These two concepts fit together to identify a new form of intimacy. In contradistinction to romantic love, which Giddens sees as being dominant since the nineteenth century when people began to marry for love rather than for economic or familial reasons, confluent love does not presume that falling in love is the threshold of a permanent relationship. The idea that one finds the right person and then stays committed to him or her through thick and thin is supplanted by the idea that if that person proves to be inadequate in some way, he or she can be replaced with a more suitable or compatible partner. Most importantly, the pure relationship is based upon a negotiated normative framework in which people decide upon how they want to live together and how they wish to collaborate and communicate. Unlike the old-​style romantic relationship, which was sealed by a marriage that brought with it an imposed normative order, the pure relationship could be highly individualized to meet the needs of different couples or households. The pure relationship has an inevitable tendency towards instability because it is continuously subject to re-​evaluation. Moreover, because the individuals who participate in this relationship are engaged in a “project of the self” which involves personal growth, change and assessment, then it is more likely that needs and desires will change and become incompatible, or at least will be subject to re-​negotiation. … Giddens’ work (like that of Beck and Beck-​Gernsheim, which we discuss below) is profoundly influenced by an aura of feminist thinking without actually engaging with feminist work on intimacy or the personal. By this we mean that Giddens takes it as a basic tenet that women are active agents who have brought about change and who are seeking further changes. In his construction of the pure relationship and confluent love he considers women as equally significant as men –​if not more so –​in the sociological analysis of the transformation of intimacy. He also acknowledges that male power in “the family” has not changed significantly. He states: For the sexual division of labour remains substantially intact; at home and at work, in most contexts of modern societies, men are largely unwilling to release their grip upon the reins of power.

What is Family?  Chapter  1

Family Fragments? cont. And he is fully aware that the structure of power in “the family” is sustained by the social and economic order. Nevertheless he envisions change which is already occurring and which will become more pronounced. Interestingly he sees the vanguard of this change in lesbian and gay relationships, which he argues come closest to the pure relationship of his model. Lesbian and gay relationships are, he argues, more likely to be based on negotiations between individuals than simple adherence to social norms which govern marital relations. This is obviously because lesbians and gays have been excluded from the institution of marriage, but also because there are no normative assumptions about gender inequalities and differences already embedded in the relationship. Thus Giddens points to the way in which gays and lesbians must construct relationships outside pre-​existing guidelines and how they need to negotiate things afresh in a context of gender (if not personal) equality. It is Giddens’ argument that although heterosexual marriage is still hampered by patriarchal power relations, it is inevitably undermined by the rise of the pure relationship and confluent love elsewhere. The high rate of divorce is, for example, an indication of a shift away from the romantic love complex to confluent love for heterosexuals. But it is clear that he recognizes the actuality of the obstacles to change because the pure relationship does require equality and democracy and these remain elusive in the heterosexual matrix. He argues:

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If orthodox marriage is not yet widely seen as just one lifestyle among others, as in fact it has become, this is partly the result of institutional lag and partly the result of the complicated mixture of attraction and repulsion which the psychic development of each sex creates with regard to the other. Thus there is unlikely to be a straightforward adoption of the pure relationship by heterosexuals in the immediate future. For a start, he suggests, they will enter into marriage for the sake of having and raising children. However, in his view children per se will not reduce the tendency towards the pure relationship. Instead marital relationships will take one of two likely forms which fall short of the pure relationship but which indicate a shift towards it. The first is the modern form of companionate marriage, in which the relationship is really akin to a friendship based on equality and mutual sympathy, but with little sexual involvement. The second is a form of co-​residence, in which a home is shared but where there is little emotional investment in each other. Neither of these two forms resembles the earlier marital ideal of romantic love based on inequality, mutual dependence and role segregation… One other criticism we would like to make concerns Giddens’ treatment of children. Smart has argued elsewhere that the pure relationship, where one can end a commitment once the relationship has ceased to be satisfactory, ignores the impact of having children. Some couples do stay together for the sake of their children, but having children often makes it much harder for individuals (usually mothers) to leave relationships and to be financially independent. We need therefore to understand how a triadic relationship might alter the essentially dyadic one of Giddens’ model. But Giddens does not ignore the existence of children altogether, rather what little he has to say about them sits ill with his own ideas about the reflexive self. Children, at least young children, are depicted somewhat as objects or burdens or a source of strain. Unlike the couple, they are not seen as having agency and thus are not seen as raising a voice at the point at which the adults decide to abandon their pure relationship. What is more, Giddens seems ignorant of the trend (for which there is as much evidence as there is for the trend towards the pure relationship) towards ongoing parenting after divorce. A sexual relationship may end, but parenting is harder to abdicate. It is not clear, therefore, that couples can simply end relationships and move on even if this is what they most want to do for themselves. Interestingly, Beck and Beck-​Gernsheim offer a very different kind of analysis where children are concerned and so we will now turn to their work. Beck and Beck-​Gernsheim: The normal chaos of love (1995) Like Giddens’ work, that of Beck and Beck-​Gernsheim has its theoretical roots in an earlier work which maps out a new analysis of modernity. In this earlier work (Risk Society, 1992) Beck outlines the process of individualization that occurs under conditions of late modernity and the extent to which older sociological concepts of class no longer capture social inequalities which come about under

Australian Family Law in Context: Commentary and Materials

Family Fragments? cont. new conditions of globalization and individualization. Inasmuch as his focus is upon the demise of traditional life (in a way not dissimilar to Giddens) he is drawn to focus on gender relations and in particular the new strains put upon women by the pull of tradition and the push of modernity. He states: In this way, the lives of women are pulled back and forth by this contradiction between liberation from and reconnection to the old ascribed roles … They flee from housework to a career and back again, and attempt in different phases of their lives to hold together the diverging conditions of their life “somehow” through contradictory decisions. … Divorce law and divorce reality, the lack of social protections, the closed doors of the labour market and the main burden of family work characterize some of the contradictions which the individualization process has brought into the female life context.

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Beck’s work therefore foregrounds the idea of contradictions and the way in which individuals try to manage these. He does not give the impression of smooth transitions from one state to another and in this sense he captures the complexities of modern life. Also like Giddens, Beck seeks to understand marriage and “the family” in the context of all the other changes that are occurring under late modernity. He does not isolate “the family” as if it could be imagined as standing apart from other institutions, maintaining a matrix of relationships which are somehow untouched by individualization, globalization, risks of unemployment or environmental damage and so on. His sociological perspective challenges the idea that “the family” can be preserved unchanged or even returned to some prior idealized model. He notes, for example, that to return to “the family” of forty years ago one would have to completely restructure the labour market, the welfare state, remove women’s legal rights, change women’s access to education and so on. These ideas are taken up in the later jointly authored Normal Chaos of Love. While there are strong similarities with Giddens’ work, this book focuses more on the way in which “love” has grown in significance in the modern era. The love of which they speak is not a kind of cool negotiation with a touch of sexual passion that Giddens implies in his pure relationship. Rather, the love described by Beck and Beck-​Gernsheim is needy, desperate and magical in its powers to transform and heal (at least temporarily). And also, quite differently to Giddens’ approach, they include the love of children in this kind of new straining for meaning through love which they see as central to modernity. Consider the following: By now we have reached the next stage; traditional bonds play only a minor role and the love between men and women has likewise proved vulnerable and prone to failure. What remains is the child. It promises a tie which is more elemental, profound and durable than any other in this society. The more other relationships become interchangeable and revocable, the more a child can become the focus of new hopes –​it is the ultimate guarantee of permanence, providing an anchor for one’s life. From this we can see similarities with Giddens, but also a major difference. For Beck and Beck-​ Gernsheim, once the adult relationship is over, the focus may become the child rather than yet another adult relationship. They refer to the growth of autonomous motherhood where women, having failed to find a suitable partner, decide to have a child outside a relationship. They also pay a lot of attention to what they see as a trend towards both mothers and fathers wanting to keep the children on divorce. The reasons that Beck and Beck-​Gernsheim offer for this new tendency is the growth of individualism in late modernity. They cite the decline of social classes and forms of collective solidarity in cultures based upon the unrestricted flow of market forces combined with an ethos of self-​improvement and self-​absorption. Ironically, however, they point out that the more individualistic we become the more we yearn for closeness, security and identification with significant others. They see these as push/​pull factors which, on the one hand, make relationships insecure and fragile, but on the other, keep us looking for just such a relationship. As an extension of this push/​pull factor they also outline what is happening to women in modern societies. They suggest that they are suffering from forces that push them towards traditional domestic roles (in particular the impossibility of combining employment with the care of children) while also being pushed towards independence (the high rate

What is Family?  Chapter  1

Family Fragments? cont. of divorce, the desire for a life of one’s own, and the need to earn money). Like Giddens, Beck and Beck-​Gernsheim focus much of their analytical attention on the contradictions facing women and they give theoretical centrality to gender divisions as the very foundation of the bourgeois family and, in turn, industrial society. Thus they acknowledge that shifts in these gender divisions produce seismic changes elsewhere. But what is less clear in Beck and Beck-​Gernsheim is how much agency women have. While Giddens sees women as developing intentionality and acting with social consequence, Beck and Beck-​Gernsheim seem to depict women (and men) as subject to forces beyond their understanding which are generated by wider social changes. They give the impression of there being people who seek to satisfy yearnings without knowing why. While we might agree that individual actors may not have a sociological gasp of their place in the process of global change, Beck and Beck-​Gernsheim tend to give the impression that individualism has produced not a reflexive self so much as an automaton.

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The boom in love reflects current living conditions and the anonymous, prefabricated pattern forced on people by the market relegating their private needs right to the end of the list. … Notwithstanding some of the problems in The Normal Chaos of Love, we wish to return to the authors’ focus on children and their arguments about the changing nature of divorce. …we find ideas about the changing significance of the child to be worth investigating further. Beck and Beck-​Gernsheim suggest that as married and/​or sexual love becomes more fragile, love for the child appears to take on the promise of greater permanence and hence satisfaction. They argue that this generates new conflicts between men and women because it has meant that men begin to re-​evaluate their relationships with their children at the point of divorce, which is the point at which they anticipate losing their children; they claim that men have started to envy women because of their closeness to children, going on to suggest … that the old bargain on divorce was that women got the children and men walked away with the economic benefits of uninterrupted employment. However, they also suggest that with more women in the labour market, men feel the bargain is now too one-​sided. They (ie the men) imagine that women have both the children and the benefits of employment. In his earlier work Beck argues: But to the degree that the economic inequality between men and women is decreased … fathers become aware of their disadvantage, partially naturally and partially legally. The woman has possession of the child as a product of her womb, which we all know does belong to her, biologically and legally. … The men who free themselves from the “fate” of a career and turn to their children come home to an empty nest. In this way Beck and Beck-​Gernsheim attempt to understand the growth in men’s anger about recent custody laws and their willingness to challenge mothers legally, as part of a wider process of individualization through which there develops a yearning for a permanent bond which only children can (apparently) provide. But it is also seen as a reaction to structural changes in employment and shifts in gendered relationships in marriage. This argument is compelling and the rise of fathers’ rights organizations throughout the Western world lends weight to the thesis. However, it is a weakness in the thesis that the authors do not differentiate between the perception of a child as provider of permanent unconditional love and the actuality of parent-​child relationships. Feminists have long striven to challenge the myth of motherhood in which it has been assumed that the birthing process gives rise to love and bonding and that mothers and children unambiguously love one another. A huge amount has been written problematizing this relationship and recognizing ambivalence, anger, suffocation and many negative emotions alongside some of the more positive ones. Loving children requires as much “work” as loving adults and it can be just as unrewarding at times. If children are perceived as an easy source of love, stability and contentment then the fathers depicted by Beck and Beck-​Gernsheim are probably destined to be disappointed. But more importantly from a sociological viewpoint, we need to understand why men might see children in this way and to explore whether it is their distance from day to day care which produces an idealized vision of this form of love.

Australian Family Law in Context: Commentary and Materials

Family Fragments? cont. The focus on children in The Normal Chaos of Love produces a very different understanding of divorce to the one implied by Giddens. In the Giddens version when the pure relationship ends there is, effectively, a clean break and people go their own way to find another relationship. But Beck and Beck-​Gernsheim present a very different analysis of post-​divorce life. They state: Only someone equating marriage with sex, loving and living together can make the mistake that divorce means the end of marriage. If one concentrates on problems of material support, on the children and on a long common biography, divorce is quite obviously not even the legal end of marriage but transforms itself into a new phase of post-​marital “separation marriage”.

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It is difficult to reconcile these two very different versions unless we assume that the couples who are the focus of Giddens’ analysis are financially independent of one another and childless. But at least the individuals who go to make up his couples are not presumed to be heterosexual and they are presumed to be reflexive about their relationship and its qualities. Beck and Beck-​Gernsheim, however, seem to perceive only heterosexual love and bonding; their lovers are driven by forces beyond their control but at least they recognize the significance of children. Both of these sociological accounts of family life under late modernity are interesting in that, while they contextualize fully “the family” in modernity and see families as part of change rather than as a group which merely reacts to changes that are generated elsewhere, they depict intimate relations and/​or love in very narrow terms. There are no mothers-​in-​law, no cousins, no grandchildren, step-​ grandparents and so on. The field of intimacy seems very empty of players. It is almost as if Giddens and Beck have entered into the myopic vision of those who have recently fallen in love and who forget that other obligations and commitments continue. Even if we accept that relationships with wider kin are now negotiated rather than governed by strict rules and normative expectations it does not mean that they are insignificant.

 [1.55] 

Notes&Questions

1.

Smart and Neale refer to the fact that Giddens prefers not to use the term “family”. Can and should we avoid the use of the term in law and policy?

2.

Is there anything in Giddens’ ideas about the pure relationship and confluent love which suggests how relationships should be legally regulated? What, for example, do these ideas contribute to the debate about the recognition of pre-​nuptial agreements?

3.

In 1992, Giddens wrote that marriage had become just one lifestyle among others, although it was not yet widely seen as such. Do you think that now, in the 21st century, it is widely seen as just one lifestyle choice?

4.

Do you think it is a desirable goal of social policy for marriage to be seen as “just one lifestyle among others”? Where do children’s needs and interests fit in, given the greater instability of cohabitation? (see Chapter 2 [3.05])

5.

Are you persuaded by Beck and Beck-​Gernsheim’s explanation for the “growth in men’s anger about recent custody laws and their willingness to challenge mothers legally”?

6.

See also A Diduck, Law’s Families (LexisNexis, London, 2003), Ch 1, for further analysis of the different views on individual intimacy and family life. See also C Smart, Personal

What is Family?  Chapter  1

Life (Polity, Cambridge, 2007) for further critique of the views of Giddens, and Beck and Beck-​Gernsheim.   

THE POST-​SEPARATION FAMILY [1.60]  Just as the definition of the family has expanded in recent years to include heterosexual

de facto relationships, same-​sex relationships and other patterns of intimate connection, so it has expanded in a different way to challenge the notion that familial relationships end on separation. Beck and Beck-​Gernsheim observed this trend when they wrote that “divorce is quite obviously not even the legal end of marriage but transforms itself into a new phase of post-​marital ‘separation marriage’ ” (quoted in Smart and Neale, above). Understanding the family as continuing after separation has involved major changes over time in how familial relationships are treated in the aftermath of separation and divorce.

Family Law and the Indissolubility of Parenthood [1.65]  P Parkinson, Family Law and the Indissolubility of Parenthood (Cambridge University Press, New York, 2011) pp 22-​24, 36-​41.

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As the no-​fault divorce revolution began to sweep the western world in the late 1960s and early 1970s, a number of features were quite typical. One defining feature of such regimes was that issues of custody and property were dealt with by a once-​for-​all process of allocation. The allocation of the children As a consequence of divorce, the court allocated the children. Typically, the courts would award “custody” to one parent, usually the mother, and grant “access” or “visitation” to the other. There was little difference in this respect between common law countries and civil law countries of Western Europe. “Custody” included virtually all the rights and powers that an adult needed to bring up a child, including the right to make decisions about a child’s education and religion. Both parents were legal guardians at common law, but this meant little, because the powers classified as those of “guardianship” were few and far between. They included such matters as consent to marriage, among others. Custody law was binary in character. The assumption universally held at that time was that custody decisions involved a definitive choice between one home and another. This understanding of the meaning of custody was not, of course, a product of the divorce revolution in the same way that the clean-​break principle was in regard to financial matters. Rather, the law as it then stood provided a context in which it was possible to hold out to parents a promise of postdivorce autonomy once the custody issue had been settled. The law of custody was not shrouded in much uncertainty in terms of its practical application. There was, after all, no such thing as joint custody in the late 1960s and early 1970s, and the maternal preference remained sufficiently strong that women could be all but guaranteed of keeping custody of younger children, unless there were serious deficiencies in their capacity to care for the child. Indeed, the motives of fathers who sought primary care of their children were questioned. In the aftermath of parental separation, there were fairly clearly assigned roles for each gender: for one, the demands of single parenthood; for the other, a substantial loss in terms of parental status and involvement. Irène Théry, the French sociologist, characterized the original divorce reform model as the substitution model of postdivorce parenting. The marriage breakdown marked the dissolution of the nuclear family. The future upbringing of the child depended on a choice between two alternatives: the home of the mother or the home of the father. Parental authority was awarded to the sole custodial parent, and there was a strong differentiation between the roles of the custodial and noncustodial parents.

Australian Family Law in Context: Commentary and Materials

Family Law and the Indissolubility of Parenthood cont. This way of seeing divorce was expressed pithily by the New York Court of Appeals in 1978: “Divorce dissolves the family as well as the marriage.” Divorce thus reversed the transformative nature of marriage. In this traditional conceptualization of what was involved in custody decision making, visitation (or “access”) was simply a “legal concession to the loser.” Once this allocation had occurred, people could get on with their lives with the past behind them. The old marriage was dead and they could begin anew, repartner, and build a new family life with only vestiges of continuity with the old…. The breakdown of the allocation model and the emergence of the enduring family It was not long after the first flush of the divorce revolution that the idea that divorce ended the family as well as the marriage began to change. This change was most marked in thinking about the arrangements for postseparation parenting. In a perceptive article written in 1986, Théry argued that the substitution model of the postseparation family was gradually being displaced. Under this model, the parents’ legal divorce necessarily required a divorce between them not only as partners but also as parents. Only one of the two parents could continue in that role after the divorce, and the other’s role would be no more than a visiting one in most cases.

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Théry argued that a new concept of postseparation parenting was emerging. This she called the idea of the enduring family. In this conceptualization, divorce was a “transition between the original family unit and the re-​organisation of the family which remains a unit, but a bipolar one.” She noted that this conceptualization of postseparation parenting implied the refusal of a choice between parents in favor of joint parental authority. A similar view was expressed in the early 1980s by social work professor Constance Ahrons, who argued that the child’s postdivorce family should be regarded as being “binuclear,” with membership in two households rather than one. Writing in 1983, she saw a trend emerging toward shared custody and coparenting, and observed that this would have “profound implications for the postdivorce family.” In her later writing, Ahrons characterized the binuclear family as a form of limited partnership established for a single purpose –​to be coparents to the children. She argued that the partnership agreement, which might have to be renegotiated from time to time as circumstances change, needs to establish rules for how parenting is to be managed across two households and make practical provision for how to deal with holiday time, illnesses, and other such issues. The family mediation movement that began to emerge in the late 1970s in the United States was also influenced by the concept that divorce is not the end of the family, but rather a reorganization of the family. New ways of describing this idea emerged. This emerging view about postseparation parenting had its outworking in major changes in the law of custody. In various jurisdictions, the law has moved from a binary, winner-​takes-​all model of parenting after separation, based on the idea of allocating custody to one parent or the other, presumptively for the duration of childhood, toward a much more fluid and contingent approach to postseparation parenting arrangements. In this new conceptualization, the assumption was that both parents should be given the opportunity to remain involved in children’s lives and to spend time with them. The details of that would depend more on logistics than the law. The divorce revolution and the feminization of poverty Changes also occurred from the 1980s onward in thinking about financial issues. It did not take long for the issue to emerge that the divorce revolution, by increasing substantially the numbers of women experiencing divorce, would have serious adverse repercussions for women, for it was almost always women, rather than men, who sacrificed their earning capacity in order to give primary focus to child rearing…. it should not have been surprising that women who had cared for children would be particularly vulnerable on separation. The generation of women who went through divorce in the 1970s and 1980s were quite likely to have withdrawn from workforce participation entirely either

What is Family?  Chapter  1

Family Law and the Indissolubility of Parenthood cont. after marriage or at least with the arrival of the first child, and they also frequently did a great variety of unpaid work outside the home, such as involvement in schools, charitable organizations, and community groups. While the economic effects of separation and divorce were often expressed in terms of the positions of women and men as a whole, the research even in the 1980s and early 1990s revealed a significant degree of heterogeneity in terms of the adverse economic effects of relationship breakdown for women. The evidence was that those women who are able to form a stable and enduring new partnership with another man typically recover their former financial position, owing to the fact that people tend to form relationships with others of similar educational background and social status, and that is likely to mean that their new partner has an earning capacity not dissimilar to that of the former husband.

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This pattern was seen very clearly, for example, in longitudinal Australian research carried out in the 1980s. The overall picture of women’s loss of household income, comparing pre-​and postseparation standards of living some three-​to-​five years after separation, was similar to the patterns in other countries. The greater the standard of living prior to separation, the greater was the fall. However, women who repartnered typically regained the economic position they had before their divorce. A follow-​up study three years later confirmed the pattern. As more women repartnered, more were able to recover something like their preseparation standard of living; but for those who remained single parents, their financial position had not improved markedly since separation. Concern about the feminization of poverty, together with the related concern for governments about the cost of supporting single-​parent families through welfare budgets, drove numerous reforms from the 1980s onward. Changes in patterns of familial relationships came at an enormous cost to governments acting as social insurers for children and their primary caregivers. They in turn sought to reduce or recoup that expenditure through increased financial transfers between former spouses and parents. The major focus around the world was on the proper assessment and collection of child support obligations, but spousal support also began to experience a revival, at least in certain jurisdictions. Men, whether or not they had been married to the mother of their children, increasingly found themselves constrained financially by the enduring obligations associated with parenthood. The gender war and the enduring family This shift toward the recognition of the enduring family could also be interpreted in less benign terms. The same developments can be seen in both positive and negative ways. For example, Dawn Borque, a Canadian author, saw the trends in terms of the reconstruction of the patriarchal, nuclear family after separation, with individual male authority being reestablished. As a consequence, women were forced to remain bound to their former partners and, to a large extent, subject to their control. However, feminist opposition to the idea of the enduring family was only partial. The notion that there should be a clean break between mothers and fathers when it came to the allocation of responsibility for children was one thing, but financial responsibility was another. Feminist writers were in the vanguard of emphasizing the indissolubility of parenthood when it came to economic issues… Far from a one-​sided shift in the balance of power between the warring genders, the shift to a recognition of the indissolubility of parenthood required both former partners to recognize the continuing rights that each of them had, and for nonresident parents to fulfill their financial obligations to their children through payments to their former partners. In their different ways, both men’s and women’s advocacy groups expressed concerns about the shift toward the recognition of the enduring family. Every step of the way, whether it has been in relation to parenting after separation or financial transfers between parents, legislative reform has been controversial and contested; change, nonetheless, has been inexorable.

Australian Family Law in Context: Commentary and Materials

Family Law and the Indissolubility of Parenthood cont. Restructuring the family after separation The history of family law reform in the last twenty years could be said to be the history of abandonment of the assumption, fundamental to the divorce reform movement of the early 1970s, that divorce could dissolve the family as well as the marriage when there are children. Margo Melli, surveying the changes over her career as an American family law professor, has commented on the magnitude of the changes since the emergence of no-​fault divorce: [A]‌s we have begun to develop a legal structure more responsive to the consequences of divorce and the needs of children and their parents, we have changed the nature of divorce. The modern institution of divorce has become quite different from its predecessors; in particular, it differs from the “clean break” vision of divorce of the early no-​fault period. Today, divorce is not the end of a relationship but a restructuring of a continuing relationship. Similarly, British sociologists Bren Neale and Carol Smart observe that divorce in the 1970s “was a personal step that separated the old life from the new; the original family was effectively disbanded as parents opted for a clean break and entered into a tacit agreement not to interfere in each other’s lives.” In contrast, modern divorce has “been recast as a ‘stage’ (albeit a painful one) in the newly extended life course of the indelible nuclear family.”



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[1.70] 

Notes&Questions

1.

The article referred to by Théry is “‘The Interest of the Child’ and the Regulation of The Post-​Divorce Family” (1986) 14 International Journal of the Sociology of Law 341.

2.

Consider again Giddens’ ideas about the pure relationship, and the issues raised in these extracts concerning the place of children. Are Giddens’ ideas consistent with a family life involving children? What is the place of commitment, obligation and responsibility within the modern family?

3.

On the economic consequences of relationship breakdown, see Chapter 12 [12.05].

  

[1.75]  The term “family” is used in international human rights conventions. In the follow-

ing case, the European Court of Human Rights considered whether a decision to make an adoption order against the wishes of the unmarried father of the child was a breach of the father’s human rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The extract here relates to the applicant’s allegations that his right to respect for family life had been violated.

Keegan v Ireland [1.80]  Keegan v Ireland (1994) 18 EHRR 342 at [41]-​[45], European Court of Human Rights 41. … The applicant alleged a violation of his right to respect for family life contrary to Article 8 (art. 8) of the Convention which provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

What is Family?  Chapter  1

Keegan v Ireland cont.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-​being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

A. Applicability of Article 8 (art. 8) 42. The Government maintained that the sporadic and unstable relationship between the applicant and the mother had come to an end before the birth of the child and did not have the minimal levels of seriousness, depth and commitment to cross the threshold into family life within the meaning of Article 8 (art. 8). Moreover, there was no period during the life of the child in which a recognised family life involving her had been in existence. In their view neither a mere blood link nor a sincere and heartfelt desire for family life were enough to create it. 43. For both the applicant and the Commission, on the other hand, his links with the child were sufficient to establish family life. They stressed that his daughter was the fruit of a planned decision taken in the context of a loving relationship.

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44. The Court recalls that the notion of the “family” in this provision is not confined solely to marriage-​based relationships and may encompass other de facto “family” ties where the parties are living together outside of marriage. … A child born out of such a relationship is ipso iure part of that “family” unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-​habiting or if their relationship has then ended. … 45. In the present case, the relationship between the applicant and the child’s mother lasted for two years during one of which they co-​habited. Moreover, the conception of their child was the result of a deliberate decision and they had also planned to get married. Their relationship at this time had thus the hallmark of family life for the purposes of Article 8 (art. 8). The fact that it subsequently broke down does not alter this conclusion any more than it would for a couple who were lawfully married and in a similar situation. It follows that from the moment of the child’s birth there existed between the applicant and his daughter a bond amounting to family life.

 [1.85] 

Notes&Questions

1.

The Court went on to find that “The fact that Irish law permitted the secret placement of the child for adoption without the applicant’s knowledge or consent, leading to the bonding of the child with the proposed adopters and to the subsequent making of an adoption order, amounted to an interference with his right to respect for family life.” The Court then considered whether the interference was permissible under art 8(2), and concluded that it was not. The Court thus found a violation of art 8.

2.

Do you think the father’s right to family life would have been violated if the parents had never lived together?

3.

On a spectrum between conception as a result of a “one night stand”, leading to birth, and having a child during marriage, at what point do you think the parents should be deemed a “family”?

  

Australian Family Law in Context: Commentary and Materials

LIVING APART TOGETHER Living-​apart-​together (LAT) Relationships in Australia [1.90]  A Reimondos, A Evans and E Gray, “Living-​apart-​together (LAT) Relationships in Australia” (2011) 87 Family Matters 43 at 44-​45, 47, 50-​53. To date very little is known about noncohabiting relationships in Australia, because of the lack of nationally representative survey data on this topic. For the first time in Australia, questions on LAT relationships were asked in the 5th wave (2005) of the Household, Income and Labour Dynamics in Australia (HILDA) survey. We used these data to examine LAT relationships, with the aim of providing an estimate of their prevalence, investigating the demographic and socio-​economic characteristics of individuals in these unions, and examining how the meaning attached to these unions varies across the life course… Definition

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With regard to definitions, one of the most important questions in the recent literature is where, if anywhere, the boundary between casual dating relationships and more committed LAT relationships should be drawn. In general, there is some agreement that more casual and fleeting relationships should be differentiated from more committed non-​residential unions, and often different terms are used to make a theoretical distinction between the two. For example, Haskey (2005) termed the former as “those who have a partner who usually lives elsewhere”, and the latter as LAT relationships. Similarly, Trost (1998) used the term “steady going couples” to identify casual relationships, as distinct from the more committed LAT couples. However, in practice, trying to categorise respondents into one group or the other is very difficult. Various factors have been used by researchers as proxy indicators of the level of seriousness of the relationship…. Data and method …The question in HILDA asked respondents who were not married and not living with a partner, whether they were in an intimate ongoing relationship with someone with whom they were not living. Respondents who answered yes were then asked a series of more detailed questions regarding their relationships, including: the month and year the relationship started, whether a definite decision to live apart had been made (and if yes by whom), the geographic distance to the partner, and the frequency of contact. Respondents were also asked if they intended to start living with their current partner during the next three years, and if they planned to marry in the future. … The questions were asked of both heterosexual and same-​sex couples, and we have included both types of couples in this study. Also, we made no specific distinction at the outset between more and less casual relationships; all living-​apart together relationships were considered, even if they had only been ongoing for a short time. Results …Our next step was to identify a typology of individuals in LAT relationships…. we identified four main types of individuals… We called the first group the “Under-​25s” because they were primarily made up of individuals aged 18–​24. This group was relatively homogenous, having had no children, no previous history of marriage, and, for the most part, no history of cohabitation. The second group we termed “Young adults, previously de facto”. As the name implies, this group was primarily made up of young adults between the ages of 25 and 34, the majority of whom were childless and had no marriage history, but usually had experienced at least one cohabitation in the past. The third type was the “Single parents”, who were older people, typically over 30, most of whom had been married and had at least one child resident in the household. Finally, we identified the “Older, previously married” group, which was also relatively homogeneous, consisting mainly of those aged 45 and over who had previously been married…

What is Family?  Chapter  1

Living-apart-together (LAT) Relationships in Australia cont. Intentions to cohabit or marry Based on our typology of individuals, we then examined group differences in whether a definite decision had been made to live apart, and in their future intentions to cohabit or marry. We found clear differences between the group responses, including whether they had made a definite decision to live apart, as shown in Table 3. For example, while over 70% of the older respondents who had previously been married had made a positive decision to live apart, this was the case for less than half of the under-​25s. To some extent, a definite decision to live apart could be taken as implying that the arrangement of not living in the same household was one of choice rather than constraint. However, this may not always be clear-​cut, because young adults still living at home may have stated that they had made a definite decision to live apart, as opposed to a preferred choice, but only because of constraints such as lack of financial resources that prevented them from moving in with their partner. When there had been a definite decision to live apart, most people indicated that it was a joint decision between them and their partner. The single parents were most likely to state that the decision to live apart was solely theirs, followed by the older group. While the responses of the single parents are not surprising, it is interesting that in the other groups where the decision was not joint, individuals usually stated that it was their decision alone, even though we would expect the decision to be roughly equally divided between the two partners.

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Turning to people’s intentions regarding the future of their relationships, nearly two-​thirds of respondents planned to live together within the next 3 years, although there was large degree of variation in responses. The young adults were the group with the highest stated intentions of living with their partner, at 79%, while the lowest intentions were found among the older group, at 32%. In general, it is difficult to tell whether those who stated that they did not intend to live together in the next 3 years were just uncertain if their relationship would continue that far into the future, or whether their answer was more an indication of a preference to maintain the status quo and stay in the relationship in the long term but continue living in separate residences. Given the earlier results regarding the age pattern of duration, it may be speculated that for young adults a negative intention reflects an uncertainty about the future of the relationship, while for older adults –​who had relationships of the longest duration –​it could indicate a preference to keep the current living arrangements. It is also interesting to note that there was not always a close link between having made a definite decision to live apart and intentions to not live together at all. For example, while 61% of young adults (previously de facto) had made a decision to live apart, around 79% did intend to move in together within the next 3 years. Respondents were also asked about their plans for marriage in the future. There was no explicit mention in this question whether the future marriage was to the current LAT partner or to a hypothetical future partner; we assumed that the majority would answer with respect to their current partner. As with the intention to cohabit, responses to the marriage question also varied greatly among the groups. Among the under-​25s group, just over 70% thought that they were likely or very likely to marry in the future, and attitudes towards marriage were also positive among young adults who had previously been de facto. On the other hand, single parents and older respondents had much lower intentions of marrying, a result that was also found by Ermisch & Siedler (2008). Over two-​thirds of the older respondents said they were unlikely or very unlikely to remarry in the future. Discussion The results from the analyses of HILDA data closely resemble the ones from other international studies. In particular, we find that older respondents, most of whom were widowed or divorced, were

Australian Family Law in Context: Commentary and Materials

Living-apart-together (LAT) Relationships in Australia cont. the most likely to be “voluntarily” living-​apart-​together and to have little intention to transition into cohabitation. While we do not know the reasons behind the choice, the wish to maintain a degree of independence and autonomy is likely to be an important consideration. Qualitative research of LAT relationships in later life in other countries highlights that for the elderly, important concerns appear to centre around the practicalities of sharing living quarters with someone else and having to adjust to another person’s habits, and the wish to remain autonomous and maintain or continue relationships with children and grandchildren. The single parents most closely resembled the older respondents in their decision to live apart and their future plans for cohabitation. Again, we do not know the reasons behind the decision, though it is possible that they did not want to disrupt the home environment of their resident child(ren) by bringing a new partner into the home or by moving into another residence. Around half of the single parents did, however, envisage living with their partner in the next 3 years. At this time, the resident children may have grown accustomed to the partner, or they may have grown up and left the household.

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A high percentage of young adults who had previously cohabited intended to start cohabiting with their partner in the next 3 years, and also to marry in the future. This group may feel the greatest normative pressure to consolidate their relationship by living in a common residence. For those under 25, the single parents, and the older, previously married, couples, the pressure to move in with their partner is unlikely to be felt as strongly. Indeed, these groups may even have felt a social pressure not to live with their partner. The under-​25s groups was more evenly divided in terms of whether a definite decision had been made to live apart. In this group, we may be picking up a substantial proportion of casual and fleeting relationships. For the more committed partners, the arrangement may be more a matter of circumstances and practical or financial constraints rather than choice. At this age, and with no previous experience of living with a partner, they may also not feel ready to take the step to move in with their partner.

 [1.95] 

Notes&Questions

1.

According to Levin, the LAT relationship should be seen as a type of familial relationship: I Levin, “Living Apart Together: A New Family Form” (2004) 52 Current Sociology 223. Do you agree?

2.

How easy is it to distinguish between the different motivations for “living apart together”, and therefore the different typologies given in this article?

3. Should any relationship involving “living apart together” have legal consequences beyond the normally applicable laws concerning property ownership, contract, bailment and unjust enrichment? 4.

  

The initial question asked in this study was “Are you currently in an intimate ongoing relationship with someone you are not living with?” How would you have answered this question? If the answer is in the affirmative, reflect on the different meanings of the words “dating”, “friendship”, “partner” and “family” as applied to your relationship.

What is Family?  Chapter  1

BEYOND FAMILY: THE RECOGNITION OF PERSONAL RELATIONSHIPS

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[1.100] For some years, there has been pressure to expand the definition of “family” to

encompass a greater range of family forms. The latest debate has been about same-​sex marriage. This movement to expand the meaning of “family” beyond the nuclear heterosexual family has been concerned mainly about rights and recognition. People have argued that those in different family forms from the traditional family ought to be entitled to be treated as “family” for various legal purposes. A motivation for this also was respect for, and recognition of, the choices that people have made for themselves concerning “family” life when they have chosen a way of doing “family” that departs from hitherto established legal norms. However, the major issue now in the 21st century is less about recognition than about differentiation. Should all the different forms of family life be treated the same? Should people be treated, for legal purposes, as if they had married when they have chosen not to do so? The demand for rights and recognition is one thing; but the acceptance of responsibilities for the wellbeing of a partner –​responsibilities that, in the traditional concept of marriage, may extend well beyond a bitter and acrimonious separation –​is quite another. The question of whether the marriage paradigm should apply to people who have chosen not to marry, is most significant when consideration is given to the financial rights and responsibilities that flow from the breakdown of de facto relationships: see Chapter 19 [16.05]. In the Australian Capital Territory, New South Wales and Tasmania, marriage-​like consequences in terms of property division and maintenance have even been applied to people who are not in conjugal relationships: Domestic Relationships Act 1994 (ACT); Property (Relationships) Act 1984 (NSW), s 5 definition of “domestic relationship”, s 20 ff; Relationships Act 2003 (Tas) s 3 definition of “partner”, ss 5, 6, 36 ff. In the ACT, courts have power to alter interests in property of people and to award maintenance, even when the parties have not lived together and are not in a sexual relationship. The legislation applies to people who are or have been living in a “domestic relationship”. This term is defined in s 3. Domestic Relationships Act 1994 (ACT), s 3 [1.105]  Domestic Relationships Act 1994 (ACT), s 3

(1)

In this  Act:



domestic relationship means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.

(2)

For subsection (1)—​



(a)

a personal relationship may exist between people although they are not members of the same household; and



(b)

a personal relationship is not taken to exist between people only because one of them provides a service for the other–​



(i)

for fee or reward; or



(ii)

on behalf of another person (including a government or body corporate); or



(iii)

on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.

Australian Family Law in Context: Commentary and Materials

[1.110]  If a relationship falls into this definition (and it could encompass a daughter looking

after her elderly mother), then the court is given very wide powers to distribute the property of the parties, and to award maintenance, on principles very similar to marriages under the Family Law Act 1975 (Cth) (FLA). The provision that gives a court power to adjust property interests under the Domestic Relationships Act 1994 (ACT) is s 15. It refers to the maintenance provisions of s 19(2) for further considerations in dividing the property as well as awarding maintenance. This is a similar structure to ss 79 and 75(2) of the in relation to formerly married people.

Domestic Relationships Act 1994 (ACT), ss 15, 19

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[1.115]  Domestic Relationships Act 1994 (ACT), ss 15, 19 (1)

On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to:



(a)

the nature and duration of the relationship; and



(b)

the financial or non-​financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and



(c)

the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and



(d)

the matters referred to in section 19(2), as far as they are relevant; and



(e)

such other matters, if any, as the court considers relevant.

19 (1)

On an application by a party to a domestic relationship, a court may order the other party to the relationship to pay an amount, or periodic amounts, by way of maintenance to the applicant if it is satisfied that–​



(a)



(b)

the applicant is unable to support himself or herself adequately because of having the care and control of a child of the parties, or a child of the other party, who, on the day on which the application is made, has not attained the age of–​ (i)

12 years; or

(ii)

if the child has a physical or mental disability –​16 years; or

the applicant is unable to support himself or herself adequately because the applicant’s earning capacity has been adversely affected by the circumstances of the relationship and the court is satisfied that–​



(i)

an order for maintenance would increase the applicant’s earning capacity by enabling the applicant to undertake a course or program of training or education; and



(ii)

it is reasonable to make the order, having regard to all the circumstances of the case.

(2)

In exercising a power under subsection (1), a court shall have regard to–​



(a)

the income, property and financial resources of each party; and



(b)

the physical and mental capacity of each party for appropriate gainful employment; and



(c)

the financial needs and obligations of each party; and



(d)

the responsibilities of either party to support any other person; and

What is Family?  Chapter  1

Domestic Relationships Act 1994 (ACT), ss 15, 19 cont.

(e)

the terms of any order made or proposed to be made under section 15 with respect to the property of either or both of the parties; and



(f)

any payments made to the applicant, pursuant to an order of a court or otherwise, in respect of the maintenance of a child or children.



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[1.120] 

Notes&Questions

1.

If, when and why is one person under an obligation to provide for the future needs of the other on the ending of a domestic relationship?

2.

How could a domestic relationship be demonstrated where the parties have never lived in the same household? Do you think the definition is broad enough to apply to some couples who date each other over an extended period of time? What about people who “live apart together”? On living apart together relationships, see Chapter 2 [2.05].

3.

How would you apply these criteria to the relationship of an adult woman who lived around the corner from her elderly mother and cared for her during her illnesses?

4.

In Victoria, applications concerning property and maintenance may be made if the “caring relationship” was registered: Relationships Act 2008 ss 39, 41.

5.

What is the difference between being a person “who provides personal or financial commitment and support of a domestic nature for the material benefit of the other” and being a good friend?

  

[1.125]  The following article looks at the desirability of reform from a Canadian perspective,

and questions the approach of treating a diverse range of relationships in the same way.

Context and Inclusivity in Canada’s Evolving Definition of the Family [1.130]  N Bala and R Bromwich, “Context and Inclusivity in Canada’s Evolving Definition of the Family” (2002) 16 International Journal of Law, Policy and the Family 145 at 170-​173. The Law Commission: Ending the privilege of conjugality? The Discussion Paper of the Law Commission of Canada on Recognizing and Supporting Close Personal Relationships Between Adults argues that it is important to address issues related to the legal definition of significant personal relationships. Further, the Commission asserts that reform offers a more coherent response than the fact-​specific, and of necessity limited, rulings of the courts. The Commission points out that Canadian family forms are diverse and that “the assumptions of Canadian law are frequently out of touch with the facts”, and argues government policy should accord with reality and support socially important relationships, or at least not discriminate between different types of relationships. The Commission de-​emphasizes conjugality as a determinant of status in relationships between adults, arguing that:

Australian Family Law in Context: Commentary and Materials

Context and Inclusivity in Canada’s Evolving Definition of the Family cont. avoiding concepts like marriage and spouse wherever the policy or programme in question does not relate to marriage, and developing new concepts that directly link the policy being pursued to the observable facts of the relationship that Parliament seeks to target can go a long way to ensuring the coherence, justice and efficiency of the law.

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A de-​emphasis on conjugality has a rationalist appeal. It has been argued that abandoning conjugality might eliminate the need for intrusive inquiry into the intimate aspects of relationships to determine whether there are to be legal consequences. Focusing on whether two persons have a “close personal adult relationship” involving a shared residence might seem less intrusive than asking whether two individuals are “spouses cohabiting in a conjugal relationship”. However, it seems likely that in answering either question, summary information about the parties’ sexual relationship will be revealed. There are some legal and policy contexts in which it is appropriate to reconsider the basis for eligibility, abandoning the concept of “spousal status” (or “conjugality”) and replacing it with the more inclusive concept of the “close personal adult relationship”. However, in the context of family law, the body of law that defines private rights and obligations that arise based on biological or affective relationships, jettisoning conjugality would not be appropriate. Conjugality –​living together in a spousal relationship –​is not defined in exclusively sexual terms, though generally sexual relations are an element of conjugality. Conjugality is established by a combination of sharing of economic, social, and emotional lives. The Supreme Court of Canada has said that the generally accepted characteristics of a “conjugal” relationship include “shared shelter, sexual and personal behavior, services, social activities, economic support and children, as well as the societal perception of the couple”. A couple does not necessarily have to satisfy all of these elements to be living in a conjugal relationship. For example, for medical reasons a couple might not have sexual relations and still be living in a conjugal relationship. Further, many couples have a sexual relationship without residing together or having a conjugal relationship. What distinguishes a conjugal cohabiting relationship from two roommates living together, or from an adult child and parent residing together, is the combination of their interdependent roles and the expectations about the relationship. While individual attitudes and behaviours vary, Canadians still generally have a profoundly important set of cultural, psychological and spiritual feelings about conjugal relationships. There is generally an expectation that a conjugal relationship will be “permanent” or at least, indefinite, though all conjugal relationships will come to an end, whether by death or separation. Spouses expect that they will share at least some significant aspects of economic lives, and recognize that both parties are gaining from the relationship. There are some cases in which it may be difficult to determine whether a particular couple is cohabiting in a conjugal relationship of sufficient duration that family law consequences should attach to the relationship. This, however, does not mean that conjugality is not a clear and important legal and social concept. Although it is not always appropriate to award spousal support at the end of a conjugal relationship, in many cases it is fair to do so. And the law of spousal support does not always require that support is to be paid at the end of a relationship. For non-​conjugal close personal adult relationships, like the common Canadian situation of an adult child living with an elderly parent, it would usually be unfair, unexpected and socially undesirable to impose support obligations if the parties cease to reside together. In theory, it might be argued that the existing legal obligations on “informal spouses” may cause some who would otherwise enter such relationships to choose to remain single. In Canada, however, there is no evidence that the imposition of this type of obligation has had any effect on the willingness of individuals to cohabit, as there are still significant social, psychological and economic benefits to forming a conjugal unit. However, for dependent adults like the elderly, there may be a very limited pool of other adults who are willing to allow the dependent person to share a residence and provide support; each of these potentially supportive adults is likely to have a very difficult choice about whether to take the

What is Family?  Chapter  1

Context and Inclusivity in Canada’s Evolving Definition of the Family cont. dependent adult into their home. If there are legal burdens added to those who, for example, take an infirm, unemployed or dependent adult into their homes, this is likely to have a very significant adverse impact on how many dependent adults receive care from relatives or friends. Because of the different ties in a conjugal relationship, the imposition of obligations would have a greater disincentive on the formation of non-​conjugal households than for conjugal households. Further, while society can no longer equate conjugality with procreation, there is still a strong relationship between conjugality and children. Conjugality is relevant to both psychological and biological parenthood, and there are few people who would consider (as a first choice) raising a child with a partner who was not in a conjugal relationship with them. The commitment of the adults to their relationship that is inherent in conjugality is also desirable in establishing an environment in which to raise children. Legal and social support for conjugality provides indirect support for children, though in establishing any social program or legal regime, care must be taken not to discriminate against children who live with only one parent, or who live in other circumstances…

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The desire for consistency is understandable, and the effects of adopting a definition in one context must be considered for others. However, it is not necessary to have the same definition of “family”, or legally significant close personal adult relationship, for all legal and social purposes. Indeed, there is already a range of definitions of family and close personal relationship in use in different legal and social contexts. It is, for example, appropriate to have a broad definition of “family” or “close personal adult relationship” for such purposes as government conflict of interest laws, prison visitation policies, and domestic violence statutes. For another example, an adult who shares a home and provides care for an economically dependent adult should be entitled to the same level of state assistance (or tax relief) whether the dependent is a parent, a spouse, a sibling, an uncle or indeed a friend. For such purposes as claiming employment benefits, legal recognition should be given to non-​conjugal adult relationships; a single adult without a spouse should be able to designate an elderly parent or other person as the beneficiary of employment benefits. In establishing rules of eligibility for state benefits, it is, as the Commission argues, necessary to consider the purpose of a legal regime and not unfairly discriminate against those who are not in a conjugal relationship. Our argument is that in some very important legal contexts, conjugality should remain a central concept. In particular, conjugality should remain central for determining whether there may be private support obligations after the end of a relationship. Legal support obligations should not be imposed on those living in adult relationships that do not involve the expectations, contributions and interdependencies of conjugal relationships.

 [1.135] 

Notes&Questions

1.

Do you agree with the Law Commission of Canada that there should not be an emphasis on concepts like “marriage” and “spouse” in law and policy?

2.

Do you agree with Bala and Bromwich when they argue that in some legal contexts, conjugality should remain a central concept?

3.

Do you agree with them that we can determine parties’ expectations about a relationship from whether or not they are in a “conjugal co-​habiting relationship”?

4.

Do you agree with them that it would “usually be unfair, unexpected and socially undesirable” to impose support obligations between an adult child and elderly parent if the parties cease to reside together?

Australian Family Law in Context: Commentary and Materials

5.

To what extent does the Domestic Relationships Act 1994 in the ACT impose a marriage paradigm on relationships which are entirely different to the notion of lifelong marriage?

6.

Do you agree that the creation of such obligations would create a disincentive to the formation of non-​conjugal households? If, as in the Domestic Relationships Act 1994, the carer can make a claim for maintenance and property, is this likely to encourage or discourage the formation of such households?

  

[1.140] The leading family law scholar, J Eekelaar, has questioned the continual extension

of the notion of “family” to an increasing range of relationships. He argues instead that we should think more broadly in terms of the legal ramifications of personal life.

Family Law and Personal Life [1.145]  J Eekelaar, Family Law and Personal Life (Oxford University Press, Oxford, 2006) pp 30-​31.

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The new era: from family law to personal law? The post-​welfarist era has thrown up another issue which is particular to family law. We have seen that this period is characterized by an increasing variety of family forms. Yet legal rights within family relationships have tended to be defined by reference to formal definitional categories, such as those who have “family life” under the European Convention, or are married, or are members of a “family”, or are legally recognized parents. For example, in Fitzpatrick v Sterling Housing Association [2001] 1 AC 27, in order to qualify for recognition, a same-​sex couple needed to be characterized as a “family” for the purposes of the relevant legislation, and in Ghaidan v Godin-​Mendoza [2004] 2 AC 557 the same result was achieved by allowing a same-​sex couple to be treated “as if” they were living together as husband and wife, thus importing the fiction of traditional marriage into a relationship which did not fall within the established categories. Similar problems could arise when considering in what way, if at all, relationships between unmarried heterosexual people living together without a sexual relationship, or heterosexual people with a sexual relationship but who are not living together should be subject to special legal attention. Do we need to try to bring these under some concept of “family”? In truth, we are dealing with the role of the law in relation to what is usually referred to as people’s “personal”, or “private”, lives. People’s “private” lives can of course include many matters other than relationships with others, but in this context will be understood as referring to such relationships. It would therefore seem appropriate, and could perhaps be liberating, to abandon the label “family” law, and replace it with the expression “personal law”. In many jurisdictions, especially those which include communities with strongly distinctive religious traditions, “personal law”, or “personal status law” is used to refer to laws which attach to individuals because of their membership of a religious or ethnic community and which cover matters covered by family law as we understand it. The suggestion here is wider than that: it refers to laws, whether applicable on the basis of an individual’s communal allegiance or not, which purport directly to regulate their private life.

 [1.150] 

1.

Notes&Questions

Is the difference between talking about “family law” and “personal law” merely semantic, or could thinking about personal law lead to better differentiation between different kinds of relationships?

What is Family?  Chapter  1

2.

Smart, writing from a sociological perspective, has also argued that we should be thinking in terms of personal life rather than family: see C Smart, Personal Life (Polity Press, Cambridge, 2007).

3.

The Relationships Act 2003 (Tas) defines people’s relationships in terms of “significant relationships” and “caring relationships”. A  significant relationship is one where the parties have a relationship as a couple and are not married to one another or related by family: s 4. A caring relationship is a relationship other than a marriage or significant relationship between two adult persons whether or not related by family, one or each of whom provides the other with domestic support and personal care:  s  5. These are together categorised as “personal relationships”: s 6. Is this terminology better than the language of “domestic relationships” contained in the legislation of the ACT and NSW?

Friends With Benefits? [1.155]  L Rosenbury, “Friends with Benefits?” (2007) 106 Michigan Law Review 189 at 226-​232. …[F]‌amily law scholars must move beyond the construction of the family in order to examine the construction of family law as a whole.

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The power of recognition A focus on the construction of family law, as opposed to the construction of family, highlights the ways that the state supports certain aspects of personal life over others. As discussed earlier, state support was initially tied to women’s economic and political dependency on men and the state’s desire to privatize that dependence so that women and children would not seek direct financial support from the state. Now that such dependency is no longer legally mandated, family law scholars generally justify state support of, and intervention in, private life by invoking three overlapping principles. As discussed earlier, family law scholars hope that family law helps people live the lives they are already living, permits individuals to develop conceptions of life free from undue state indoctrination, and provides individuals with the tools to overcome the potential inequalities of the private sphere, including gender inequality. These principles intersect to create a theoretical tension, existing throughout family law, about whether the law should reflect or shape family life. Most scholars considered to be within the mainstream of the field have come to agree that the law should adapt to changing family life, and family law reform has largely followed that course…. By moving beyond the construction of the family to the construction of family law, family law scholars could begin to consider explicitly how the existing boundaries of family law affect personal relationships both in and beyond the legal family. The boundaries of the legal family would remain significant to this consideration because they are currently constitutive of both family and friendship. Once that work of family law is acknowledged, however, family law scholars would not be confined to considerations of the boundaries of the family. Rather, scholars could consider how family law might explicitly recognize friendship, at least in some contexts. Explicit legal recognition of friendship could soften the effects of the state’s current, implicit regulation of friendship by signaling that friendship is worthy of state support. Such signaling might eliminate some of the stigma experienced by people living outside of state-​sanctioned coupling, because other personal relationships would be recognized by the state. In addition, such signaling would begin to blur the legal binary between friends and family. That blurring could in turn disrupt the hierarchy of care produced by the current construction of family law, creating greater possibilities for gender equality.

Australian Family Law in Context: Commentary and Materials

Friends With Benefits? cont. Although legal recognition of friendship has the potential to disrupt existing hierarchies of care produced by the current regulation of both friendship and family, legal recognition of friendship also carries the risk of reinscribing new hierarchies of care. Like any form of legal recognition, recognition of friendship would signal that certain forms of care are more worthy of state support than others. Such signaling could frustrate family law’s goal of gender equality if legal recognition of friendship was substituted for legal recognition of family. Although friendship does not share marriage’s history of gendered dependence and hierarchy, it is still deeply gendered, as described below. Therefore, simply substituting friendship for family is unlikely to produce greater freedom from gender role expectations. A simultaneous recognition of friends and family could address this risk while also emphasizing the overlapping nature of friendship and family. Such simultaneous recognition would go beyond the binary of friends and family to support individuals’ choices about how to structure their lives, choices mediated less by legal definitions of family than is currently permitted. This new construction of family law would not ask individuals to substitute family for friendship or friendship for family. Rather, it would focus on the care provided and received by multiple individuals throughout one’s life course. Instead of channeling personal relationships into recognized forms, the state would provide individuals with more freedom to embrace diverse personal relationships and conceptions of care.

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Guiding principles The specific contours of any new construction of family law will likely be subject to much debate. This Article leaves proposals for law reform to other scholars. Instead, my primary goal has been to illustrate the various ways our imaginations have been limited by the current construction of family law. That construction limits our ability to envision legal recognition of networks of care outside of the home, thereby also limiting our ability to conceive of more substantive forms of gender equality. Once the extent of these limitations has been recognized, scholars can begin to explore comprehensive reforms that are not so limited. However, the analysis above does suggest some guiding principles for family law reformers. Most obviously, this Article calls for explicit state recognition of friendship, and that recognition must go beyond a simple proclamation that friendship is important to many people’s lives. Instead, state recognition of friendship must be sufficiently robust to match, or counter, the signals currently sent by state recognition of marriage and family. But that does not mean that the state must necessarily extend friends the same benefits accorded to families. Instead of embracing simple norms of equality, new constructions of family law can better recognize friendship by embracing the principles of nonexclusivity and fluidity. Nonexclusivity is vital to new constructions of family law because exclusivity risks reinforcing the primacy of one comprehensive relationship over others and the corresponding importance of domestic caregiving over other forms of care. Such reinforcement would likely continue to channel women into domestic caregiving roles. Simultaneous recognition of family and friendship would go a long way toward combating that channeling. Indeed, simultaneous recognition, by its very definition, is incompatible with the current emphasis on exclusivity found in legal marriage…. In order to recognize that people can and do rely on multiple people to perform different functions in their lives, and that these people and functions can shift over time, family law would have to go well beyond proposals permitting individuals to name one designated friend or even a spouse plus a best friend. For example, one relatively aggressive approach would gather all of the benefits, default rules, and obligations attaching to marriage and permit individuals to assign some or all of those forms of legal support to the individuals of their choice. For example, an individual could choose for default property division rules to apply to the person with whom they are living, joint health insurance

What is Family?  Chapter  1

Friends With Benefits? cont. benefits to be shared with a noncohabitating friend or lover, hospital visitation rights to be given to yet another person, and protections under the Family and Medical Leave Act (FMLA) to be available to care for a sibling.

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Such an approach would be difficult to implement, given the complexity of the current regulatory regime of marriage. The benefits, default rules, and obligations attaching to marriage are a patchwork of federal, state, and local law. However, despite the fragmented nature of marriage recognition and regulation, all levels of government are united in their silence with respect to friendship. Permitting individuals to assign certain benefits, obligations, or default rules to friends would therefore be an innovation throughout the entirety of the complex regulatory regime of marriage, minimizing conflicts among the levels of government. Moreover, the complexity of the regime could permit experimentation at the various levels of government and with respect to the specific benefit, obligation, or default rule in question. For example, a state could initially provide individuals with the flexibility to designate friends as eligible for certain benefits, obligations, or default rules but not other benefits, obligations, or default rules. Individuals can currently achieve some of this flexibility through private contracting (for example through living-​together agreements, prenuptial agreements, or health care proxies), but not all of the consequences of marriage can currently be assigned by contract (including, most importantly, health insurance benefits, social security benefits, and rights under the FMLA). Therefore, such a proposal would change the current substance of the law to a great extent but not radically. The more radical aspect of this type of proposal would be its rejection of private contracting to readjust the current consequences of marriage determined by the state. Instead, some or all of the benefits, obligations, and default rules currently reserved for spouses would be available alike to spouses, friends, or the other individuals designated. Such a proposal would therefore allow all individuals, not just married couples, to decide how they would like the state to support their personal relationships, if at all. Unlike the current state of the law, marriage or a marriage-​like relationship would not be a prerequisite for taking on the packages of benefits, obligations, and default rules provided by federal, state and local governments. Instead, individuals could choose to apply those packages to other types of personal relationships without engaging in private contracting. In addition, individuals would not be required to take or leave entire packages but rather could divide the packages among multiple individuals, also without engaging in private contracting. Such an approach could go a long way toward supporting the diverse forms of care performed by multiple individuals in many people’s lives and encouraging other people to consider new ways to live their lives. State support would no longer hinge on the performance of types of domestic caregiving rooted in a history of state-​supported patriarchy. The care and support provided and received outside of that framework would no longer be ignored or negated. The boundaries of family law would be expanded, making them much less likely to constrain individual preferences and practices. Unlike other proposals, however, friendship would not be pushed to take on the defining aspects of family in order to be let into family law’s domain. Rather, individuals could choose how they would like the state to support and recognize both their friendships and family relationships. In addition, such an approach would not necessitate a legal definition of friendship or family, thereby acknowledging the potential fluidity of family and friendship. Individual preference, rather than legal definition, would control which relationships are supported by the state and which are not. The only necessary limitation would seem to be one of mutuality: individuals could not unilaterally expect those in their proposed “caring network” to either take on caregiving responsibilities or receive caregiving benefits. Rather, some sort of acceptance would be required.



Australian Family Law in Context: Commentary and Materials

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[1.160] 

Notes&Questions

1.

Critically examine the proposals made in the extract from this article. What are the arguments for and against allowing people to elect that certain rights and privileges associated with marriage should go to friends instead?

2.

If such a proposal were implemented, should people be allowed to confer benefits on best friends as well as spouses, or should an election need to be made of one or the other? Does your answer depend on the kinds of benefits?

3.

Should the law that spouses are not compelled to give evidence against one another be applied to “best friends”?

4.

For what reasons do you think the law has historically conferred rights and privileges on marriage, and why should that be continued today? Do you agree that these rights and privileges should be extended to cohabiting de facto relationships? What about people living apart together? What about friends? If non-​marital relationships should attract the privileges of marriage, should they attract any responsibilities of marriage as well?

5.

Would you like to see friendship become a matter of legal significance? Would it change its nature? See further J Eekelaar, Family Law and Personal Life (Oxford University Press, Oxford, 2006), Ch 2.

6.

In concluding this chapter, reflect upon why it is that some people at least have wanted to give an ever-​wider meaning to the word “family”, and to impose marriage-​like rights and obligations on an increasing range of non-​marital relationships.

  

CHAPTER 2

Family Forms and Family Behaviours [2.05]

AN OVERVIEW............................................................................................................... 31 [2.05] Trends in Family Transitions, Forms and Functioning................................... 31 [2.15] DIVORCE....................................................................................................................... 37 [2.20] Towards Understanding the Reasons for Divorce........................................ 38 [2.30] REPARTNERING............................................................................................................. 46 [2.35]

[2.45]

DE FACTO RELATIONSHIPS............................................................................................ 48 [2.50] [2.65] [2.75]

[2.85] [2.95] [2.110]

The Social and Demographic Characteristics of Cohabiters in Australia: Towards a Typology of Cohabiting Couples............................................... 48 Relationship Dissolution....................................................................... 51 Sliding Versus Deciding........................................................................ 53

SINGLE PARENTHOOD.................................................................................................. 55 SAME-​SEX COUPLES AND THEIR CHILDREN.................................................................. 56 [2.100] Same-​Sex Couples in Australia, 2016...................................................... 56 CHANGING BEHAVIOUR WITHIN FAMILIES................................................................... 58 [2.115] [2.120]

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The Effect of Children on Men’s and Women’s Chances of Re-​partnering in a European Context............................................................................... 46

Shares of Housework Between Mothers, Fathers and Young People: Routine and Non-​routine Housework, Doing Housework for Oneself and Others.......... 59 Life Course Transitions and Housework: Marriage, Parenthood, and Time on Housework........................................................................................ 60

AN OVERVIEW Trends in Family Transitions, Forms and Functioning [2.05]  R Weston and L Qu, “Trends in Family Transitions, Forms and Functioning: Essential Issues for Policy Development and Legislation” in A Hayes and D Higgins (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, Melbourne, 2014) pp 7-​13. This chapter focuses on various ways in which family formation pathways and the characteristics and functioning of families have changed over the decades. The picture is largely one of increasing diversity, with important implications for policies and legislation designed to protect the wellbeing of all families –​the bedrock of society. Trends in marriage Most young people want to marry and have children, and although most people still marry at some stage in their lives, marriage rates have declined since the “Golden Era” of the post–​World War II period. A broader perspective, however, reveals that the crude marriage rate has fluctuated greatly over the years, with the highest rates occurring in 1940–​42 (when the prospect of military service appears to have sparked hasty marriages), and directly after World War II in 1946–​48 (9.7–​10.6 marriages per 1,000 people in the resident population) (see Figure 1).

Australian Family Law in Context: Commentary and Materials

Trends in Family Transitions, Forms and Functioning cont. Figure 1: Crude marriage rate, 1901–​2012 14

Crude marriage rate

12 10 8 6 4 2 0 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2010 Year

Note: Crude marriage rate is the number of marriages registered per 1,000 of the resident population in a given year.

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Sources: ABS. (various years). Marriages and divorces Australia The rate increased again in the 1960s due to continued economic prosperity, the fall in age at first marriage, continuing strong social disapproval of sexual relationships outside marriage; and the introduction of the oral contraceptive pill. From 1972 onwards, the crude marriage rate has mostly fallen, with the lowest rate (5.3) occurring in 2001. Since this time, the rate has fluctuated between 5.4 and 5.5. The trend over the most recent decades has been accompanied by increases in age at marriage and increases in rates of cohabitation (i.e., de facto relationships). Before outlining the latter trends, however, we will focus on divorce, given that it is only through marriage that divorce is possible. Trends in divorce While marriage trends play an essential role in shaping those relating to divorce, divorce trends have also been heavily influenced by the interaction of several other factors, including women’s increased opportunities to achieve financial independence; improvements in the “safety net” provided to financially vulnerable families; a weakening of the social stigma attached to divorce; and legislative reforms. In addition, as constraints to separation have abated, the future of a couple’s relationship has increasingly depended on the extent to which the relationship meets each partner’s emotional needs. As a result, several social commentators have pointed out that the threshold for remaining together has fallen. In the first decade of the 20th century, the number of divorces recorded each year ranged from 300 to 500. As Figure 2 shows, the crude divorce rate rose slightly in the 1920s to mid-​1940s, peaking at 1.1 divorces per 1,000 resident population in 1947, partly reflecting the instability of hasty wartime marriages and the disruptive effects of the war on marriage. The rate then declined slightly until the 1960s, when it changed direction again. The rise followed the introduction of the Matrimonial Causes Act 1959, which came into operation in 1961. The Act established uniform legislation across all Australian states and territories and provided 14 grounds for divorce, with people having to either prove fault or undergo five years of separation.

Family Forms and Family Behaviours  Chapter  2

Trends in Family Transitions, Forms and Functioning cont. Figure 2: Crude divorce rate, 1901–​2012 5.0 4.5

Crude divorce rate

4.0 3.5 3.0 2.5 2.0 1.5 1.0 0.5 0 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2010 Year

Note: Crude divorce rate is the number of divorces granted per 1,000 of the resident population in a given year.

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Sources: ABS. (various years). Marriages and divorces Australia In response to increasing social pressure, the Federal Government, after much debate, introduced the Family Law Act 1975, which came into operation in January 1976. The Act allowed divorce based on only one ground –​“irretrievable breakdown” –​as measured by at least 12 months of separation. The crude divorce rate soared to its highest peak of 4.6 divorces per 1,000 resident population in that year, reflecting the formalisation of some long-​term separations and the bringing forward of some divorces that had been filed in the previous years but had not yet been finalised. The highest number of divorces was also recorded in that year (63,230). Since then, the crude divorce rate has mostly fluctuated between 2.5 and 2.9, with a trough occurring in the mid-​1980s. However, the rate has fallen in the most recent decade (from 2.8 in 2001 to 2.2–​2.3 between 2007 and 2012). Although many divorces occur to couples with children under 18 years old, the proportion of all divorces that involve children has declined since the early 1970s –​from 68% in 1971 to 61% in 1980, 56% in 1990, 53% in 2000, and 48% in 2012. Since 2000, around 43,000 to 54,000 children under 18 years have experienced the divorce of their parents each year. Rise in cohabitation and its fragility Marriage and divorce trends have weakened greatly as proxies for couple formation and dissolution, given the rise in cohabitation and its relative fragility. The proportion of all couples who are cohabiting appears to have increased by one to three percentage points across each Census year, from 6% in 1986 to 16% in 2011. Cohabitation is especially common among young people. For example, the majority of partnered teenagers and those in their early 20s were cohabiting in 2011, while the obverse applied to those aged 25 years and older. For most of the 20th century, almost all heterosexual couples married then moved in together, whereas the reverse is true today: most couples who marry have already been living with each other for some time. The proportion of marriages preceded by cohabitation increased at a more or less

Australian Family Law in Context: Commentary and Materials

Trends in Family Transitions, Forms and Functioning cont. steady rate between 1975, when only 16% of couples who married had been cohabiting, and 2011, when 78% had been cohabiting. However, a cohabiting relationship is far less stable than marriage, regardless of whether couples have children. The increase in cohabitation in general and associated instability of these relationships has highlighted the potential financial vulnerability to which people in longer term cohabitation may be exposed and some of the difficulties faced by parents in settling property and parenting matters. These are issues that contributed to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, which came into operation on 1 March 2009 (and 1 July 2010 for South Australia) and applies in all states except Western Australia. Under the so-​called “de facto property regime” established through this legislation, cohabiting couples who meet certain criteria (e.g., they have lived together for at least two years, or have a child of the relationship) are treated in the same way as married couples. Before its passage, the new legislation’s treatment of cohabitation of at least two years in the same way as marriage sparked a great deal of controversy, highlighting the tension between respecting people’s private decisions to live together outside marriage and protecting their potential vulnerability in nationally consistent ways should the relationship break down. However, little is known about cohabiting couples’ understanding of the legal consequences of their staying together for at least two years, should they have begun their relationship after the “de facto property regime” was established.

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Resulting family forms Trends in couple formation and the stability of relationships, along with fertility, have contributed to the relative prevalence of different family forms –​an issue examined in this section. For statistical purposes, the ABS defines families as follows: Two or more persons, one of whom is at least 15 years of age, who are related by blood, marriage (registered or de facto), adoption, step or fostering; and who are usually resident in the same household. The basis of a family is formed by identifying the presence of a couple relationship, lone parent–​child relationship or other blood relationship. Some households will, therefore, contain more than one family. Under this “household family” definition, families may comprise: couples with or without co-​ resident children of any age; single parents with co-​resident children of any age; grandparents caring for grandchildren; and other families of related adults, such as brothers or sisters living together, where no couple or parent–​child relationship exists (although this excludes relatives beyond first cousins). However, it is important to keep in mind that the concept of “family” is neither unitary nor unchanging. It involves the drawing of boundaries delineating “who is in” and “who is out”, with the boundaries changing as individuals move through their life course. The boundaries drawn by analysts and policy-​makers vary according to the purpose behind their focus on families, and even members of the same household may hold different ideas about whether a particular co-​resident is a member of their “family”. This may arise, for example, when a parent re-​partners. Virtually all people also have family members who are spread across households and communities. Grandparents, for instance, are very likely to see their adult children and grandchildren as “family”, even if separated by vast distances, and also probably include their own siblings and wider kin in this extended sense of family. The two households formed in the process of parental separation is another clear example of families crossing household boundaries. Defining Indigenous family boundaries is particularly challenging, for some Indigenous communities adopt kinship terminology that differs from each other and from that used in the “Anglo-​Celtic” system. Especially in remote areas, households comprising Indigenous people tend to be complex and

Family Forms and Family Behaviours  Chapter  2

Trends in Family Transitions, Forms and Functioning cont. fluid in their composition, with kinship networks overlapping, and adults and children often moving between households. Figure 3 shows the extent of change in basic family forms since 1976. Couple-​only families and couple families with dependent children were the most common family forms in 2011, representing 38% and 37% respectively of all families. In total, 11% of all families were one-​parent families with dependent children and 8% were couple families with non-​dependent children only. The remainder (hereafter referred to as “other families”) accounted for 7%, and include one-​parent families with nondependent children only, along with families comprising related individuals, who are neither living with a partner nor having a parent–​child relationship (e.g., siblings living together). Of all these “other families”, about three-​quarters comprised one-​parent families with non-​dependent children only. Over the last 45 years, the greatest changes that have occurred relate to the two most common family forms –​couple-​only families and couple families with dependent children: • In 1976, couple families with dependent children predominated, representing 48% of all families, while only 28% were couple-​only families. • By 2006, these two family types were equally common, with each representing 37% of all families. • In 2011, however, couple-​only families were marginally more common than couple families with dependent children (38% vs 37%).

Figure 3: Family forms, 1976–​2011 60 50 40 Percentage

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The proportion of one-​parent families with dependent children also increased (from 7% to 11%). At the same time, the already small proportion of couple families with only non-​dependent children fell (from 11% to 8%). Finally, the proportion of families that lie outside the above classifications (i.e., “other families”) changed little (representing around 6–​7% across the time periods).

30 20 10 0

One-parent Couple families with only dependent children 1976

1986

Couple with Couple with dependent non-dependent children children 1996

2006

Other families 2011

Note: “Other families” include one-​parent families with non-​dependent children. Source: Hugo (2001) Family functioning While the changes in the representation of the different family forms are considerable, they represent the net effects of even greater levels of change in the life courses of individuals. For instance,

Australian Family Law in Context: Commentary and Materials

Trends in Family Transitions, Forms and Functioning cont. some single parents with dependent children will have re-​partnered, thereby becoming couples with dependent children, while some couples with dependent children will have separated, with the mother and children typically forming a one-​parent family for a time. Transitions into different family forms can have important financial implications, with flow-​on effects on functioning. For example, most one-​parent families with dependent children are formed through relationship dissolution, and most are headed by mothers (86% in 2011). These families tend to be considerably worse off financially than other families. On the other hand, re-​partnering is likely to improve their financial circumstances. Whatever the change in financial circumstances, these transitions carry other risks, including those associated with children’s acceptance of a new step-​parent and the negotiation of parenting roles. But of all the changes in family functioning that have occurred within family forms, perhaps the most generic and spectacular is the changing role of parents; that is, the switch from the male breadwinner/​female homemaker model to one where parents increasingly share the breadwinning role. It was not until 1966 that the Federal Government permitted married women to be appointed or remain as permanent officers in the Commonwealth Public Service and to return to their jobs after the birth of their children. Increasing proportions of women over the last few decades have maintained some attachment to the labour force upon having children.

Figure 4: Number of jobs among families with dependent children and students, 1983–​2012 80 70 60 Percentage

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The surge of mothers in the workforce is well illustrated in Figure 4. Among couple families, those with a single-​income earner clearly predominated in 1983, representing almost half the families; however, by 2012, this proportion had fallen to 30%. Single mothers’ rates of both full-​time and part-​time paid work (especially the latter) have also increased over this period. Whereas in 1983, 20% of single mothers had full-​time paid work and 12% had part-​time paid work, in 2012, the rates were 27% and 29% respectively.

50 40 30 20 10 0

0 job

0.5 job

1 job 1.5 jobs 2 jobs

Couple families 1983

0 job

0.5 job

1 job

Single-mother families 1995

2000

2012

Sources: ABS. (2012). Labour force status and other characteristics of families



Family Forms and Family Behaviours  Chapter  2

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[2.10] Notes&Questions

1.

The crude marriage rate per 1,000 of the resident population was 4.9 in 2016. This compares with 5.5 in 2006. Australian Bureau of Statistics, 3310.0  –​ Marriages and Divorces, Australia, 2016 (2017). There has therefore been quite a substantial decline in marriage rates since Weston and Qu published this work in 2014. Why do you think marriage rates are continuing to decline?

2.

In 2016, median age at first marriage for men was over 30 and for women, nearly 29. Australian Bureau of Statistics, 3310.0 –​ Marriages and Divorces, Australia, 2016 (2017). This median age keeps rising. Why are men and women postponing marriage? Are there likely to be differences in the reasons according to gender? Is it a sign that marriage choice is being taken more seriously than ever?

3.

It has been estimated, based on 2000-​2002 marriage statistics, that nearly a third of men and more than a quarter of women will never marry in their lifetimes: S Jain, “Lifetime Marriage and Divorce Trends” in 4102.0 –​Australian Social Trends 2007 (Australian Bureau of Statistics, Canberra, 2008). What are the social implications of this increase in single living, whether as a result of never finding a partner, or experiencing the breakdown of a marriage or de facto relationship? On the growth in single-​person households, see D de Vaus and L Qu, Demographics of Living Alone (Australian Institute of Family Studies, 2015).

4.

The recorded divorce rate probably underestimates the level of marriage breakdown because some couples who separate may not bother to divorce. This is because divorce is simply a licence to remarry. Issues concerning property and children can be resolved without a divorce being sought. In data from a longitudinal study, Hewitt and Baxter found that 20% of former couples who were separated but not divorced had been separated for ten years or more. B Hewitt and J Baxter, “Relationship Dissolution” in G Heard and D Arunachalam (eds), Family Formation in 21st Century Australia (2015) 77 at 82.

5.

About 47% of all divorces involve children: Australian Bureau of Statistics, 3310.0 –​ Marriages and Divorces, Australia, 2016 (2017). This does not include children who experience the breakdown of their parents’ de facto relationship.

6.

What might be some of the legal issues for couples without children that could arise after separation?

  

DIVORCE [2.15]  The following article reports findings from a major research project carried out by the

Australian Institute of Family Studies which, amongst other matters, asked people why their marriages broke up.

Australian Family Law in Context: Commentary and Materials

Towards Understanding the Reasons for Divorce [2.20]  I Wolcott and J Hughes, “Towards Understanding the Reasons for Divorce”, Australian Institute of Family Studies Working Paper No 20, June 1999. Respondents in the Australian Divorce Transition Project (ADTP) were asked, “What would you say was the main reason for your marriage ending?” … For simplicity of discussion, and later to extend the analysis, the majority of responses have been grouped under three major dimensions that correspond to those described in the literature. The categories are: “affective reasons”, “abusive behaviours” and “external pressures”. Additional responses have been coded in a category called “other”. Affective reasons

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Consistent with most other studies of marriage breakdown … the most common reasons given by respondents for their marriage ending centred around the affective qualities of the relationship including communication problems (27 per cent) and incompatibility/​drifting apart (21 per cent). Communication problems was the most commonly cited cause for both men (33 per cent) and women (23 per cent). Similar proportions of men and women felt that incompatibility/​drifting apart was the major cause. Some studies have found that higher proportions of women than men mention complaints about communication. Others have also reported gender agreement on this dimension. Such differences may be related to how respondents’ reasons are expressed and then interpreted into specific codes. For example, Burns included “lack of common interests” in the “lack of communication” category. In the ADTP, the category of “incompatibility/​drifting apart” included statements originally coded as “other” that expressed loss of love, trust and changed values and lifestyle demands or desires. For example: “There was a lack of love, we grew apart emotionally.” “We had completely different ideas on our way of life and the way we lived.” “We changed differently and grew separately.” “Just basic incompatibility with different interests.” Or more simply: “Just two people growing apart.” Only a small proportion of men and women (less than 2 per cent) specifically mentioned sexual incompatibility as a main reason for divorce. As with incompatibility or drifting apart, communication problems can be either a short-​hand or a global attempt to verbalise an array of situations connected with emotional erosion in the relationship –​not being understood, feeling that needs are not being met, loss of affection and companionship, feeling lonely and unappreciated. Such reasons are likely to be symptoms of problems with deeper psychological or social roots. Infidelity While often categorised separately, as in this study, infidelity often connotes a deterioration in the affective and emotional realm of the marriage associated with loss of love, betrayal of trust, indifference and growing apart. Infidelity was perceived as the main provocation for divorce by 20 per cent of both men and women. For the majority, it was a spouse’s infidelity that was the precipitating factor. Only 11 respondents, eight of whom were men, claimed their own infidelity as a reason. The discrepancies between reported spouse and self attributions of infidelity as a major reason for divorce can be influenced by a respondent’s reluctance to admit that his or her own behaviour may have been involved. Respondents may also have been more inclined to see personal infidelity as the consequence of other problems (such as incompatibility) that led to the marriage breakdown. However, the impact of infidelity as a reason for divorce may depend on the meaning individuals attach to its importance. Some may tolerate an affair in the relationship for a variety of reasons, while for others infidelity is a fundamental and unforgivable breach in the marital contract.

Family Forms and Family Behaviours  Chapter  2

Towards Understanding the Reasons for Divorce cont. The dominance of affective reasons given by respondents as the main perceived cause of their marriage breakdown confirms the emphasis placed on the emotional closeness and companionship dimensions of relationships that appear to define contemporary marriages. Abusive behaviours and personality traits A range of personality characteristics and behaviours attributed to oneself or, more frequently, one’s spouse, have been mentioned in the literature as reasons for marriage breakdown. Often included in this category are alcohol and drug use problems, jealousy, dominance, immaturity, gambling, physical and emotional violence, and mental illness. Alcohol and drug abuse In the ADTP, 11 per cent of women and 3 per cent of men reported alcohol or drug abuse as the main reason for divorce. Although the responses did not distinguish between whether it was the respondent or their partner who had an alcohol or drug abuse problem, previous studies have found that wives are more likely than husbands to nominate negative personality traits of their spouse including alcohol and drug use and emotional and physical abuse. Physical, verbal and emotional violence to self or children

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Of the 6 per cent of respondents who reported that physical violence was the main reason for marriage breakdown, all but one of the 35 were women. In six of these cases, physical danger to a child was the reason. Since respondents were only asked if physical violence to themselves was the main reason for marriage breakdown, men would not have had the opportunity to indicate that their own aggressive behaviour toward their wives was a main cause of divorce, a more commonly reported situation in the literature. Verbal and emotional abuse was cited as a main reason by only 2 per cent of respondents –​in the main, women. Again, depending on how respondents interpreted the meaning of this reason, aspects of this form of abuse could have been subsumed in other responses related to a spouse’s personality traits or communication problems. The presence of physical violence or emotional abuse may not be alluded to as the main reason for divorce. A recent Australian survey of the incidence of spousal violence during marriage and/​ or after separation found fairly similar proportions of men (55 per cent) and women (62 per cent) reported experiencing physical violence including threats by their former spouse. Emotional abuse was reported by 84 per cent of women and 75 per cent of men. Marital therapists report that between 40 to 60 per cent of couples seeking marital therapy have experienced episodes of violence in their relationship although only between 6 and 10 per cent of clients spontaneously mention violence as an issue. Incidents of violence often emerge during the course of interviews or through responses to checklists on dealing with conflict. In this context it may be useful to note that definitions of violence can be narrow or broad incorporating a wide range of behaviours. External pressures Factors outside the interpersonal relationship may impinge on the relationship generating stress leading to marriage breakdown. Mental and physical health Physical and mental health reasons were not recorded as separate complaints in the ADTP, so mental health conditions were not able to be interpreted as aspects of other behaviours such as alcohol abuse or extreme jealousy which some respondents may have assumed in their responses (and other studies have so categorised). Physical illness and mental health problems have often been incorporated within the category of external pressures and are so included in this analysis.

Australian Family Law in Context: Commentary and Materials

Towards Understanding the Reasons for Divorce cont. Approximately 5 per cent of both men and women reported physical or mental health as the main reason the marriage ended. It is not possible to determine whether, in some cases, respondents would have included alcohol and drug use, or some forms of emotional abuse, as a mental health reason. Physical and mental illness can increase stress in relationships and lower marital satisfaction. Poor health can strain finances, affect sexual relations, and create tensions around caring and the division of labour –​ leading to diminished marital satisfaction. Illness can also bring couples closer together, depending on the nature of the illness, supports available and levels of marital cohesion. Depression and other mental health illnesses appear to have a greater impact on marital satisfaction than many physical illnesses. According to Halford and Bouma: “Marital distress and psychological disorder reciprocally influence each other.” Marital problems can generate or exacerbate some psychological disorders but individuals with psychiatric disorders are also less likely to develop satisfying marriages. Financial problems Only 5 per cent of respondents claimed financial problems were the main cause of their marriage ending. Some studies have attached greater importance than this to financial problems as a reason for marriage dissolution. This discrepancy could be explained by the fact that respondents in the ADTP were asked to nominate the main reason for divorce whereas other studies allowed multiple reasons to be given without ranking them in order of priority.

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It is also possible that couples may not recognise that concerns about income or insecure employment may underline some of the stresses and tensions in the relationship that contributed to its breakdown. Financial hardship can increase isolation, emotional stress, depression and lower self-​ esteem, which, in turn, can generate or exacerbate marital tensions. Marriage counselling and family support agencies have suggested that financial strains have a negative impact on relationships and family life. Responses did not allow the analysis to tease out the control of money as a possible concern as distinct from inadequate finances. The way finances are handled in a marriage can represent underlying issues of power and authority in a relationship that may contribute to overall dissatisfaction. Work Despite recent attention to increased pressures and hours of work in a competitive economic climate, and the effect on families attempting to balance work and family life, work issues and work and family time were cited by only 3 per cent of respondents as the primary reason for divorce. Work-​related demands and pressures that generate tension and stress may go unrecognised. However, they can spill over into family life in the form of lack of time, emotional and physical energy to invest in the partnership and children which can lead to marital conflict and dissatisfaction. Approximately 63 per cent of women were in the workforce at the time of separation. Again, disagreements over appropriate gender roles and the allocation of work and family tasks, and autonomy and independence in the relationship, while not specifically mentioned as a reason for the marriage ending, may have been incorporated into responses of incompatibility or aspects of a spouse’s personality. In-​laws Interference from in-​laws as a main reason was mentioned by few respondents. Other reasons Although the intensive years of child raising has been associated with a decrease in marital satisfaction, few respondents (2 per cent), either men or women, mentioned problems with children as the main reason for the ending of the marriage. Several respondent comments referred to a partner’s attitude to children as the cause. It is possible that concerns about parenting values and disagreements

Family Forms and Family Behaviours  Chapter  2

Towards Understanding the Reasons for Divorce cont. about raising children were subsumed in responses of communication, incompatibility or spousal personality issues. Reasons: combined categories The individual perceived causes of divorce were collapsed into three broad categories (affective issues, abusive behaviours, external pressures) to create a better opportunity for meaningful statistical differences to emerge. The “affective issues” category included: communication problems, incompatibility/​ drifting apart, and affair by you or former spouse. The “abusive behaviours” category included: physical violence to you or children, alcohol/​drug abuse, and emotional or verbal abuse. The “external pressures” category included: financial problems, work/​time, physical/​emotional health issues and family interference. The responses “spouse’s personality” and “problems with children” did not fit clearly within this conceptual framework given the way interview responses were recorded. Therefore, all the cases in which these reasons were reported, plus those coded as “other”, were excluded from the analysis (n = 25).

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… 71 per cent of all remaining men and women perceived affective issues as the main reason for marriage breakdown. Abusive behaviours were mentioned as the main reason by 16 per cent of these respondents, while 13 per cent noted external pressures. There were, however, significant differences between men and women in their perceptions of the main reason for divorce (p