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International Family Law, Policy and Practice Some Collected Papers from the Centre’s July 2016 Conference Culture, Dispute Resolution and the Modernised Family Volume 4, Number 2 • Autumn 2016 International Family Law, Policy and Practice Volume 4, Number 2 • Autumn 2016 SOME COLLECTED PAPERS FROM THE CENTRE’S JULY CONFERENCE CULTURE, DISPUTE RESOLUTION AND THE MODERNISED FAMILY Contents Editor’s Message 3 Editorial Board 4 40 Years of Innovative Family Law - The Hon Diana Bryant, AO 5 Who is a parent in the Australian Federation - S Nicholes and T North SC 21 The Future of Marriage - P Parkinson 39 FGM - A-M Hutchinson 50 Guidelines for Submission of Articles 69 – International Family Law, Policy and Practice • Vol. 4.2 • Autumn 2016 • page 2 – Editor’s Message This issue is the first of the collected papers from the Centre’s 2016 Conference on Culture, Dispute Resolution and the Modernised Family, which will be continued in the next two issues. We begin with four papers highlighting topics of key international interest: coincidentally three are from Australia which has often led the development of English law, however other global movers and shakers will get their turn in succeeding issues. Following the recent theme in our last two issues of updates in Family Justice in the Family Court of England and Wales it is fascinating to read here the account by the Hon Diana Bryant AO, Chief Justice of the Family Court of Australia, of their Forty Years of Innovative Family Law in Australia, much of which has clearly been a model for our own modernisation. This was the subject of her keynote speech in the first plenary session of the conference. Leading expert in international child protection Anne-Marie Hutchinson OBE QC, together with a colleague from their firm Dawson Cornwell in London, next provide a comprehensive account of a current problem which has attracted worldwide attention but for which so far no solution has been found despite widespread, but obviously ineffective, legislation which appears to be no match for ingrained culture in those communities in which the practice persists: Female Genital Mutilation. The power points from their conference session may be accessed through the Centre’s website, but their more detailed paper published here also sets out the international response to this harmful practice which has now been taken up by the United Nations’ Global Goal of eliminating FGM everywhere by 2030, perhaps more effectively through health and education channels than has been the case with any banning, prohibiting or criminalising legislation which has so far drawn only one (unsuccessful) prosecution in England. However this is a paper which makes for depressing reading, since this ‘zero tolerance’ is not really a new but renewed initiative with origins at least 10 years ago and which is clearly not yet obtaining a hearing in the cultures in which the practice flourishes. Professor Patrick Parkinson of the University of Sydney, New South Wales, then shines new light on the international status of marriage. This is very much a new perspective, by a famous champion of the status of marriage, who is however now asking whether it can survive the relentless evolution practice of contemporary intimate partnering: in other words the ‘functionality’ point on which those in favour of legislative recognition for cohabitants in English Law have argued for changes to mirror those in other jurisdictions such as Australia and New Zealand. Finally, we include a further paper from Australia with international significance: Sally Nicholes and Tim North SC’s on an aspect of Parentage in the Australian Federation which addresses the key point of links to a child’s biological culture and origins following adoption and indeed accurate registration of parentage following modern reproductive practices now available. The importance of this to the identity of a child is a constantly recurring theme in both law and social science, coincidentally the subject of a contemporary popular film already attracting many prize nominations, and a topic with which Australia has strong links in the past policy of adoption out of their cultures of indigenous Australian children which was thought at the time to be for their benefit, but later regarded as so wrong as to attract a government apology for the policy and its consequences. The themes from this first collection of the conference papers certainly provides some excellent inspiration from the international Family Law community which never disappoints when gathering so productively in London at a Centre conference every three years, so as to share perspectives and insights from around the world, of which there are more in the next issue. Fr a n c e s B u r to n Frances Burton Editor, International Family Law, Policy and Practice This issue may be cited as (2016) 4 IFLPP 2, ISSN 2055-4802 online at www.icflpp.com. – International Family Law, Policy and Practice • Vol. 4.2 • Autumn 2016 • page 3 – Editorial Board of International Family Law, Policy and Practice Professor Peter de Cruz Professor Julian Farrand (Joint Chairmen) The Hon Mr Justice Jonathan Baker Professor Stephen Gilmore, Kings College, London Anne-Marie Hutchinson QC OBE, Dawson Cornwell, Solicitors Clare Renton, 29 Bedford Row Chambers Julia Thackray, Solicitor and Mediator (Ex officio, the Co-Directors of the Centre) Dr Frances Burton (Editor) Professor Marilyn Freeman – International Family Law, Policy and Practice • Vol. 4.2 • Autumn 2016 • page 4 – 40 Years of Innovative Family Law The Hon Diana Bryant AO, Chief Justice of the Family Court of Australia* 1. Introduction of each of the country’s six states and two territories. When the Family Court of Australia (‘the Court’ or Section 51 of the Constitution sets out 39 heads of ‘the Family Court’) opened its doors on 5 January legislative power that are granted to the 1976, it was the start of a proud and ground-breaking Commonwealth. The states retain residual powers — legacy in the history of the Australian legal system. It i.e. power in respect of all issues not specified in s 51. has now been 40 years since that exciting beginning, The states can also refer power to the federal and still our family law is a highly dynamic and government in circumstances where it would innovative practice area. otherwise lack power under the Constitution. For I had the special privilege of seeing that beginning. example, referrals of power have been made in respect I entered legal practice in the area of family law when of corporation law and counter-terrorism. it was brand new, a completely even playing field — Within this system, private family law matters are this is many a lawyer’s dream, I imagine, but it is an the constitutional responsibility of the opportunity that very rarely comes around. We were Commonwealth, while public law disputes are the learning as we went — there was no jurisprudence, so responsibility of the states and territories. The latter we watched the law being made and each helped in include applications for protective orders against some way to shape it. family violence2 as well as child protection Years later, I would have the opportunity again to proceedings. be present at a beginning, in my role as the inaugural Chief Federal Magistrate of a brand new trial level federal court, then called the Federal Magistrates 3. 1975 TO 1984 Court of Australia (‘FMC’). Four years later, I was The Family Law Act 1975 (Commonwealth) (‘the appointed Chief Justice of the Family Court, a role I Act’ or ‘the Family Law Act’) and the Court it created have now held for more than a decade. Next year I will were born of a time in Australian history characterised retire, and this has left me in a reflective mood. So I by significant social upheaval. Changes in Australian would like to take this opportunity to offer a brief look society had led to a widespread questioning of the back at some of the major moments in Australian continuing desirability of the fault-based divorce family law, from its inception in 1975 to the present regime. The women’s liberation movement had come day. to Australia, leading to demands for sexual equality reforms. Psychology had problematized old understandings of human relations, thus challenging 2. A (Very) Brief Introduction to the Australian Legal the simplistic explanations of marital breakdown that System were embedded in the old Matrimonial Causes Act 1959 First, I must very briefly sketch the Australian legal (Commonwealth). There were also growing concerns system to give you a sense of how things fit together. about the cost and indignity of having to prove a 3 Australia’s governmental system is one of cooperative ‘matrimonial offence’. So, after several years of 4 federalism as provided for in the Australian Constitution. committees, reports, lobbying and revision, the Family Power is divided between the federal government (also Law Act was passed by the Australian Parliament on known as the Commonwealth) and the governments 29 May 1975, receiving royal assent on 12 June of that * A paper delivered in the Plenary Session on Wednesday 6 July 2016 at the Conference Culture, Dispute Resolution and the Modernised Family of the International Centre for Family Law, Policy and Practice, in Association with King’s College, London. 1 The views in this paper are my own and do not represent the views of the Family Court of Australia or other judges. They also do not indicate how I would decide a case after having the benefit of argument. I would like to thank my Senior Legal Research Adviser, Candice Parr, for her assistance in researching and composing this paper. 2 Note however that the Family Law Act 1975 (Commonwealth) does provide jurisdiction to make injunctions for personal protection in both children’s matters and property proceedings).

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