Cambridge University Press 978-1-107-56179-3 — the Family in Law Archana Parashar , Francesca Dominello Index More Information INDEX

Cambridge University Press 978-1-107-56179-3 — The Family in Law Archana Parashar , Francesca Dominello Index More Information INDEX

Abbott government, 371, 414 conscientious objection birth mothers excluded from Aboriginal and Torres Strait clauses, 384 adoption process, 418–19 Islander children fathers’ attempts to prevent eligibility criteria for adoption of, 308, 409, 416 terminations, 387–8 adoptive parents, 409 best interests of the child medical practioners’ role, Indigenous people as and, 307–12, 365–8 385–6 adoptive parents, 409 cultural factors in New South Wales, 381 intercountry adoption, 409, determination of best Northern Territory, 382, 384 414 interests, 307–12 Queensland, 381 jurisdictional differences, forced removal, 24, 309, 367, South Australia, 382, 384 409–10 400, 408, 419 Tasmania, 384, 385 legal ﬁction of child as out-of-home care, 307, 398 United States, 379–80 natural child of adoptive over-representation in child Victoria, 383 parents, 84 protection system, 394, Western Australia, 383, 384 privileging of nuclear family, 399–404 wrongful birth actions, 406, 418–19 recognition of rights of, 308 388–93 same-sex couples as right to enjoy their culture, Administrative Appeals adoptive parents, 409, 280 Tribunal, 347 416–18 Aboriginal and Torres Strait adoption single people as adoptive Islander peoples alternative to abortion, 412 parents, 409 adoption of children, 409 as unregulated practice, 407 State powers, 295 Closing the Gap policy, 366 availability of children, 411 transfer of birth parents’ mutual obligation regime, conservative proponents, rights to adoptive parents, 366 412, 413 406 practical reconciliation, 366 criticisms of, 413 alimony. shared responsibility demand for easier access history of concept, 191–5 agreements, 366 to, 407 See also spousal traditional Aboriginal expatriate adoptions, 408 maintenance marriages, 47–9, 409 forced relinquishment of alternative dispute resolution Aboriginal Child Placement children, 407 (ADR) Principle (ACPP), 307, intercountry adoption, 408, Australian legal system’s 394, 398, 400, 401–2, 403 411–12 reliance upon, 60 Aboriginal customary law known child adoptions, 409 compulsory FDR, 270–2 traditional Aboriginal liberal proponents, 412, 413 evaluation of use in family marriages, 47–9, 409 local adoptions, 409 law, 63–7 abortion out-of-home care and, 407, family violence and, 140–4 adoption as alternative to, 415–16 provisions in family law, 412 permanent child placement 61–2 birth control and, 375–7 and, 408 separation from FCA, 58–9 pro-abortion arguments, regulation in Australia, 408 services provided by FCA, 377–8 revival of, 413 58 pro-life stance, 378–9 transracial adoption, 412 ante-nuptial settlements, 247 rights of women, 375, 377–8 types in Australia, 408 apprehended domestic socially responsible act, adoption law violence orders (ADVO), 424 adoption of Indigenous 137 abortion law children, 416 apprehended personal access zones, 385 adoptive parents’ rights, 407 violence orders, 137 Australia, 380–5 best interests of the child apprehended violence orders, Australian Capital Territory, and, 410, 412, 414, 416, 136 384 418–19 Aristotle, view of the family, 13

435

asset pools introduction of principle, 298 judicial and legislative ascertaining each party’s method of determination, emphases, 288–9 contribution, 167–75 299 jurisdictional complexity, assessing contributions to nuclear family and, 374, 406, 290 modest asset pools, 175 418–19 Magellan Case Management identifying composition and parents’ rights and, 418 Plan, 274–5 value, 166–7 primary and additional response of courts to assisted reproductive considerations, 299 allegations, 290–1 technologies (ART) protection of, 26 Child Care Benefit, 368 access of single women and regulation of ‘different’ Child Care Rebate, 368 lesbians to IVF treatment, families, 365–71 child maintenance. 421 relationship between applications under Family biological family unit and, financial and child-related Law Act, 340–1 420–3 issues, 65 financial agreements and, global context, 423–8 relocation of parents and, 245–6 legal regulation, 422–3 314–19 prior to Child Support local context, 429 rights of parents and, 65 Scheme, 341 scrutiny of couples seeking scrutiny of couples seeking separation from spousal treatment, 420 ART treatment, 420 maintenance, 221–5 Astor, Hilary, 140 sexuality of parents and, See also child-support Australian Law Reform 312–14 agreements Commission (ALRC) shared parental child poverty, 334, 339, 341, on family violence, 140, 290 responsibility and, 146–7, 357 on matrimonial property, 252, 260–3, 280–2, 332 child protection 154 surrogacy arrangements and, Aboriginal and Torres Strait on recognition of traditional 431–2 Islander children, 394, Aboriginal marriage, 47–9 welfare of the child concept, 399–404 Australian Taxation Office, 342 255–6 Aboriginal Child women’s focus on, 63 Placement Principle, Baby Bonus, 365, 368, 369, 370 bigamy, 48 307, 394, 398, 400, 401–2, bankruptcy, 185–6 binding child-support 403 Baron, Paula, 187 agreements, 351 after-care support, 399 Beck, Ulrich, 26, 72 birth control best interests of the child Beck-Gernsheim, Elisabeth, 72 abortion and, 375–7 and, 393, 397 Behrens, Juliet, 145 blended families, 43 children’s participation in best interests of the child Boyd, Susan, 354 decision-making, 397 adoption and, 410, 412, 414, Bringing Them Home report, cost to the state, 407, 414 416, 418–19 307, 308, 309, 310, 366, culturally specific responses, child protection and, 393, 400, 401 398 397 Brown, Wendy, 133 early intervention, 397 child’s wishes or views and, extreme measures, 24 301–7 capacity. See legal capacity features of current schemes, cultural factors for care economy, 159 396–9 Indigenous children, care work, 160 historical overview of 307–12 caring labour, 159 Australian laws, 394–6 determining factors, 294, Cheal, David, 15, 25 maintenance of biological 300–1 child abduction. See parental family unit, 407, 413 guiding principle of, 406 child abduction national framework, 414 indeterminacy, 297–8 child abuse out-of-home care, 399, 411 Indigenous children, 307–12, false allegations, 289 permanency planning and 365–8 institutional maltreatment, 408 stability of care, 399

436 index

permanent care orders, construction in legal child-support liability 414–15 discourse, 253 application for assessment, responsibility for, 397 myth of, 254 346 child rearing, financial costs of, child-related orders assessment, 346 337, 338 enforcement, 327–31 collection methods, 347 child support. child-related proceedings compliance with obligations, diversion from court system, family consultants, 278 357 398 independent children’s current formula, 348–50 equal liability of both lawyer (ICL), 276–7 original formula, 342 parents, 339 less adversarial trials, 273–4 review of administrative need for, 335–6 Magellan Case Management assessments, 347 parental obligation, 336 Program, 274–5 Christian conception of paying parents’ average principles and personnel, marriage, 13, 111, 191 taxable income, 339 275 classical liberalism privatisation of, 338 procedural innovations, theory of the family, 18 receiving parents’ average 273–8 clean break philosophy, 151, taxable income, 339 views of the child, 275 363 shift from judicial to children spousal maintenance and, administrative regulation, as public goods, 338 201–3 336 autonomy of, 307 clean break principle, 191 societal responsibility for, best interests. See best operation of, 152 337–8, 354 interests of the child Closing the Gap policy, 366 See also Child Support definition of the child, 253, Collier, Richard, 291 Scheme (CSS) 263–4 Commonwealth Child Support Agency, 341, ex-nuptial children, 40–1, divorce power, 33, 38, 39, 343, 351 42, 43–5, 193 40–1 child support agreements exposure to family violence, enactment of divorce law, 38 limited child-support 137 enactment of marriage law, agreements, 351 in immigration detention, 38 private agreements, 357 295–6 marriage power, 33, 38, 39, Child Support Registrar, 346 Indigenous children. See 40–3 Child Support Scheme (CSS). Aboriginal and Torres States/Territories’ referral of compulsory participation by Strait Islander children family law powers, 295 social-welfare recipients, legal capacity, 258–9, 307 States/Territories’ referral of 341, 350 marriage power of powers with respect to de Costs of Children Table, Commonwealth and, 43–5 facto relationships, 51–2 356 socialisation, 14 States’ referral of family law critique of, 354–7 vulnerability of, 252, 254 powers, 43 history of, 341–4 children’s rights, 397 consent introduction, 261 discourses of, 252, 256–8 surrogacy arrangements, 423 key elements, 345 protection of, 373 consent orders, 246, 272 rationale for, 359 child’s views/wishes consent to marriage reforms, 344–5 abducted child’s objection to and validity of marriage, welfare benefits and, 352–3 being returned, 325–7 84–7 See also child-support best interests of the child duress, 85 liability and, 301–7 fraud and lack of consent, child trafficking, 411, 425, 432 child-support agreements, 334 85–6 child welfare binding child-support mental capacity, 86–7 State powers, 295 agreements, 351 contact/access orders childhood private agreement options, breach of, 328 concept of, 254–5 350–1 Cook, Kay, 353, 355

index 437

Costello, Peter, 370 communication of intention as ‘natural’ institution, 30 court-ordered child to separate, 119–21 assumptions about, 3 maintenance, 334 creation, 38 assumptions made in law, courts of summary jurisdiction elements of separation, 118 112 family law jurisdiction, 54 endorsement of blended families, 43 coverture, 73, 76, 152 individualisation, 26 classical liberal view, 18 Curthoys, Ann, 17 fault-based divorce, 111, 116 commonsense view of, 13 custody, 260, 265, 344 filing application for divorce, concept of, 6–9 custody and maintenance 127–8 dependency model, 9, 33 orders irretrievable breakdown of ideological expectations of marriage powers of marriage, 118–21 relatedness, 27 Commonwealth, 40–1 legal requirements for impact of ART on custody disputes divorce, 117–18 understanding of, 420–3 involving third parties, 45–6 living separately and apart, in Australian law, 33–7 119, 121 nuclear families. See nuclear de facto marriage, 92 no-fault divorce, 111–12, family de facto relationships 114, 115–16 private institution, 111 cohabitation requirement, proceedings involving third regulation through marriage, 105 parties, 45–6 73–5 distinguished from marriage, protection of institution of sociology of, 25 76, 92, 107 marriage, 124–7 structural-functionalist view, end of relationship, 128–30 separation period, 123–4 12, 15–16, 360 financial provisions, 97 separation under the same synonomous with marriage, individualisation and, 93 roof, 121–4 69 legislative recognition, 94–5 State/Territory laws replaced theories of, 25 measured against elements by Commonwealth law, without marriage, 93–4 of marriage, 99–102, 107 38 family consultants, 278, 303 personal or caring divorce orders, 127–8 Family Court of Australia relationships, 107–8 Dolan, Frances, 132 (FCA) proving existence of, 96–106 domestic work ADR facilities, 58 reasons for entering into, 93 economic value, 159–60, 162 appeals, 54 registration, 95, 105, 106 Children’s Cases Program, same-sex relationships, 88, ecclesiastical law 273, 274 95, 102–5 rules of nullity of marriage, creation, 53, 55 separate provisions for, 51–2 113 distinctiveness, 52 States’ referral of powers to Eekelaar, John, 115 hostility towards, 56–8 Commonwealth, 51–2 Eisenstein, Zillah, 377 jurisdiction, 53–4, 127, 161, statutory definitions, 95 emotionally transmitted debt, 294–8 threshold requirements, 187 less adversarial trials, 148, 96–7 enforcement of orders, 327–31 273–4 decree absolute, 127 eugenics, 376, 377 Magellan Case Management decree nisi, 127 Every Picture Tells a Story Program, 148, 274–5 Dickey, Anthony, 118 report, 58, 59, 146, 355 parens patriae jurisdiction, Diduck, Alison, 197 ex-nuptial children, 40–1, 42, 294 dissolution of marriage, 118 43–5, 192 parens patriae power, 296 divorce procedural innovations, 55 history and philosophy of, familial selflessness, 133 procedures for dealing with 113–17 family allegations of violence divorce law alternative structures and abuse, 148 Commonwealth powers, 33, recognised in law, 69, 72 relevance, 53 38, 40–1 as biological necessity, 14 rules, 59

438 index

specialist court, 55–6, 58, Family Tax Benefit (FTB), applications for property 182 352–3, 368 orders, 161 status, 53 Part A, 351, 352, 353, 359, cases involving child abuse, structure, 53 370 274 welfare power, 294, 295, 296 family violence creation, 59 Family Court of Western alternative dispute resolution divorce applications, 127 Australia, 54 and, 140–4 jurisdiction, 53, 54, 127 family dispute resolution apprehended domestic principles for dealing with (FDR) violence orders (ADVO), allegations of violence or definition, 57 137 abuse, 148 introduction, 61 apprehended personal rules, 59 stand-alone facilities for, violence orders, 137 Federal Court of Australia, 53 58–9 apprehended violence Federal Magistrates Court of family justice, 21–5, 374 orders, 136 Australia, 53, 59 family law breakdown of relationships Fehlberg, Belinda, 343, 355, aim of, 26 and, 130–1 356, 357 and legislative powers of children’s exposure to, 137 financial agreements Commonwealth, 33 civil remedies, 135 alternatives to, 246–7 as dispute resolution contributions of parties in autonomy of parties versus mechanism, 27 property proceedings, protection of law, 230–2 assumptions about the 173–4 definition, 236 family, 3, 37, 112 criminal offences, 135 family relations as boundary-marking function, definition, 137, 141 contractual, 228–9, 236 9, 10, 17, 228 exclusive occupation orders, formal and substantive constitutive role in ideas 139 requirements for binding about family and familial gendered nature of, 131 agreements, 238–45 relationships, 2–4 injunctions, 137–9 inconsistency with other discourses of, 28 intersections of race and provisions in FLA, 232–4 historical context, 37–9 gender, 133–4 individual autonomy and history of, 73 legal responses to, 134–5 dependency in family interaction with other areas no-fault divorce and, 111–12 relationships, 234–6 of property law, 182 non-molestation type orders, introduction of, 227 nature of, 29 138 norm-setting function of the need for wider conception, nuclear family and, 132–3 provisions, 249 189 property distribution, 144–6 opting out of FLA relationship with social remedies in State and jurisdiction, 162, 227 welfare, 359–60 Territory laws, 135–7 parties to, 237–8 reliance on nuclear family remedies under Family Law procedure over substance, construct, 2–3 Act, 137–9 229–30 role in regulating familial shared parental provisions, 236–7 relations, 11–12 responsibility and, 146–7 restrictions on, 245–6 scope, 9–11 Family Violence report, 140, setting aside, 247–9 study of, 189 290 third parties, 246 family law jurisprudence, 182 fathers’ rights groups financial provisions family law scholarship, 28 attitudes and influence of, de facto relationships, 97 Family Relationship Advice 261, 334, 342, 354, 365, design of, 158–9 Line, 345 370 financial resources family relationship centres Federal Circuit Court of distinguished from property (FRCs), 141 Australia (FCC) and income, 166 family reports, 273–8, 303, 304, applications for parenting treatment in distribution of 305 orders, 272 property interests, 167

index 439

Fineman, Martha, 93, 188, 354 Hunter, Rosemary, 148 Jenson, Jane, 356 Firestone, Shulamith, 254 jurisprudential analysis of Folbre, Nancy, 337, 338 immigration detention family law, 3 Forgotten Australians, 408 Family Court’s lack of juvenile delinquency, 255 formal equality, 188 jurisdiction over children formalism, 50, 182 in, 295–6 Kaye, Miranda, 365 Former Child Migrants, 408 impact of long-term knowledge. Foucault, Michel, 28, 71 detention, 295 nature of, 25 Freidman, Lawrence, 115 independent children’s lawyer positivist views of, 27 friendly parent provision, 147, (ICL), 276–7, 303, 304, 305 See also legal knowledge 289 Indigenous children. See Krause, Harry, 336, 337 functionalism, 15 Aboriginal and Torres Krauskopf, Joan, 155 future needs Strait Islander children Krieger, Sarah, 140 assessment in property Indigenous people. See Kruse, Harry, 337 proceedings, 176–7 Aboriginal and Torres Kymlicka, Will, 22, 23, 24 Strait Islander peoples Gay and Lesbian Rights Lobby, individual autonomy Lasch, Christopher, 14 105 and dependency in family law gender equality, 188 relationships, 234–6 as constructed knowledge, gendered work. See sexual birth control and, 375–7 29 division of labour discourse of, 5, 72, 177, 232, legal aid, 142 Giddens, Anthony, 72, 116 334 legal capacity Gillard government, 371 no-fault divorce and, 112, age of majority, 258 Gillick competency test, 258, 116 children, 258–9, 307 268–9, 301, 302 promotion of, 227 consent to marriage, 86–7 Glendon, Mary Ann, 115, 222 individualisation, 25, 26 legal education Golder, Hilary, 111 de facto relationships, 93 broadening of, 189 Graycar, Regina, 148, 338, 339 in divorce law, 26 critical legal theory and, 149 Greenwood, Victoria, 375, 376 in family law, 26 interdisciplinary study of guarantors in family relationships, 72 law, 3 women as guarantors of of marriage, 77 legal discourse and, 29 debts of partners, 186–7 reﬂexive individualisation, 72 use of theory, 28 guardianship, 260, 265, 344 self-fulfulment and, 266 legal knowledge Guggenheim, Martin, 256 individualism and legal reasoning, 28 as measure of progress, 73 construction of, 2, 6, 29, 149 Hardingham, Ian, 199 in family law, 115 legal pluralism, 48 Harris, Barbara, 70, 71 inﬂuence on family law, 5 legal reasoning hierarchy of relationships, 106 no-fault divorce and, 111 and legal knowledge, 28 High Court of Australia promotion of, 266 and legislative assumptions, appeals to, 54 rise of, 193 195 constitutional interpretation, tension with conventional methods, 12 37, 44, 50, 51 interdependencies of conventions of, 44, 91, 162, formalism, 50, 182 family relations, 111, 234 164, 165, 175, 188, 189, interpretation of unequal availability, 26 204, 209, 221, 392 Commonwealth marriage injunctions function of, 44, 172, 181, and divorce powers, 40–3 family violence remedy, 331 privileging of heterosexual 137–9 mainstream view of, 92 nuclear family, 40–3 IVF treatment meaning of, 160 Howard government, 365, 366, access of single women and mechanisms of, 301 367, 370, 413 lesbians to, 421 objectivity of, 44, 51

440 index

procedure over substance, traditional Aboriginal men’s rights groups. 171 marriages, 47–9 attitudes and influence of, standard method, 37 See also same-sex marriage 291 legal representation marriage counselling, 111 See also fathers’ rights access to, 142 marriage law groups less adversarial trials, 148, capacities required for valid middle-class welfare, 358, 368 273–4 marriage, 81–3 motherhood limited child-support Commonwealth powers, 33, construction of legal agreements, 351 40–3 discourse of, 392–3 location orders, 329 consent, 84–7 mutual obligation, 363–5 consular marriages, 80–1 Aboriginal and Torres Strait Macklin, Ruth, 421 definition of marriage, 33, Islander peoples, 366 Magellan Case Management 46–52, 125 Program, 148, 274–5 duress and lack of consent, Nancarrow, Heather, 133 Maidment, Susan, 255–6 85 Natalier, Kristin, 355 Maine, Henry, 75 formal requirements, 78–81 National Council to Reduce maintenance fraud and lack of consent, Violence against Women children. See child 85–6 and their Children, 141 maintenance if either party is lawfully National Framework for period payments. See married to another Protecting Australia’s periodic maintenance person, 83 Children 2009–2020, 414 spouses. See spousal marriageable age, 87 Neave, Marcia, 145, 199 maintenance mental capacity and neoliberalism, 334, 338, 358, maintenance orders, 152, 327 consent, 86–7 363, 366 market liberalism, 111 mistake as to identity New Right, 364, 378 marriage. of party or nature of New South Wales Law Reform as contract, 74, 75 ceremony, 86 Commission, 105 as heterosexual union, non-compliance with rules, Newborn Supplement, 368 90–2 84 Newborn Upfront Payment, as institution, 74, 80, 113 nullity of marriage, 81–2, 368 as model for family life, 70 113 Newstart Allowance, 369 as monogamous union, 83 presumption of validity, 80 Nicholson, Alastair, 274 as sacrament, 113, 191 proceedings involving third Nicholson, Linda, 18 as standard to measure parties, 45–6 non-court-based family other relationships, 108 prohibited unions, 75, services. See alternative as status relationship, 111 83–4 dispute resolution (ADR) as synonomous with ‘family’, protection of marriage, 10, non-financial contributions to 69 111, 124–7 property autonomy model, 116, 117, recognition of marriages attributing value to, 168 201 celebrated abroad, 80–1 non-financial domestic and Commonwealth legislative specific requirements for care work powers, 38 validity, 83–7 attributing financial value to, dependency model, 72, 116, marriageable age, 81, 87 168–71 117 maternity leave payment, 365 consideration in property individualisation of, 77 McKenzie, Hayley, 353 proceedings, 168 informalisation of, 77 mediation. See alternative dependencies created legal regulation of the dispute resolution (ADR) by, 26 family, 73–5 medical negligence non-financial work rituals of, 75–8 wrongful birth actions, attributing financial value to, Roman manus marriage, 75 388–93 159–60, 175

index 441

Northern Territory Emergency recovery orders, 320 incidence of awards, 225 Response (NTER), 367 rights of custody and lump sum payment, 202 nuclear family acquiescence, 324–5 property division and, 202 adoption and, 406, 418–19 Parental Leave Pay, 368–70, personal or caring as basis for familial 371 relationships relationships, 419 parental responsibility. regulation as contracts, 107–8 as normal family, 14 autonomy of parents in Petersen del Mar, David, 131 best interests of the child intact families, 266–9 Phillips, Roderick, 113, 114 and, 332, 374, 406 compulsory FDR and, 270–2 Polikoff, Nancy, 90 concept of, 13–16 introduction of concept, 265 polygamy, 81, 83 construction as fundamental parenting with help of the Poole, Ross, 18, 235 unit of society, 360 court, 272–3 positivism, 27 family law’s reliance on parents in separated families positivist conception of law, construct of, 2–3 and equal shared parental 2, 10 family violence and, 132–3 responsibility, 269–72 Poster, Mark, 70, 71 history of, 70–2 See also shared parental postmodernism, 27 privileging of model, 40–3, responsibility post-nuptial agreements, 246 373, 418–19 parenting orders, 271, 272–3, post-nuptial settlements, 247 329, 350 practical reconciliation policy, O’Donovan, Katherine, 74, 93, Parenting Payment, 368, 369, 366 195, 196 370 pre-nuptial agreements, 246 Okin, Susan, 22, 23, 24, 257 Parenting Payment recipients primary dispute resolution Opie, Annie, 354 mutual obligation regime, (PDR), 61 Orton, Helena, 197 363–5 private international law, 78, overseas child orders, 321 parenting plans, 272, 329, 350 80, 81, 82 parents property paramountcy principle, 296 autonomy in intact families, distinguished from financial parens patriae jurisdiction, 266–9 resources and income, 294 bearing of their sexuality 166 parens patriae power, 296 on child’s best interests, legal definition, 166 parental child abduction 312–14 property disputes application of Hague definition, 264 private settlement, 163 Convention on Child relocation with child, 314–19 property interests Abduction, 322 responsibility. See parental design of FLA financial child’s objection to being responsibility provisions, 158–9 returned, 325–7 shared responsibility. distribution at end of violent discretion to not return See shared parental relationship, 144–6 child, 324 responsibility introduction of division of grave risk exception, 325 Parsons, Talcott, 15, 16, 70, 262 property, 153 habitual residence and rights Pateman, Carole, 235 just and equitable of custody, 322–4 paternalism, 5, 65, 124, 233, distribution, 12, 163–5, human rights ground for not 252, 256, 258, 265, 294, 177–82 returning child, 327 307, 367, 385 negative contributions, 145 incidence of, 320 periodic maintenance philosophical issues, 152–4 international community’s availability of, 202 rationales for altering, 155–8 response to, 320 cessation of, 200 property orders jurisdiction of Australian consequences of providing, applications for, 161 courts, 322 225 four-step process, 165 overseas child orders, 321 delegitimisation of, 202 just and equitable perpetrators, 320 factors for consideration, 195 requirement, 177–82

442 index

relevance of spousal reproductive technologies. care time allocation, 282–4 maintenance factors, See assisted reproductive concept of, 279–80 214–21 technologies (ART) family violence and, 146–7 rules governing, 163–5 Rhoades, Helen, 142, 262, 354 norm-creating function of spousal maintenance and, Roman Catholic view of the legislation, 286–8 153, 199–201 marriage, 113 rebuttal versus superannuation, 182–5 Roman manus marriage, 75 inapplicability of the variation of, 162 Rossi, Alice, 14 presumption, 284–8 property ownership regimes, Rudd government, 366, 414 relocation of parent with 154 Rudd, Kevin, 309, 367 children, 317–19 community of property shared responsibility ownership, 154 same-sex couples agreements (SRAs), 366 deferred community adoption by, 409, 416–18 Smart, Carol, 27, 77, 93 property ownership, 154 same-sex marriage Smyth, Bruce, 343, 357 spouses’ property as debate over, 87–90 Social Security Appeals separate property, 154 implications of legal Tribunal, 345 property proceedings recognition, 89–90 social welfare ascertaining each party’s legislative definition of impact of neoliberalism, contribution, 167–75 marriage, 49–51 363 bankruptcy of a party, 185–6 significance of ‘marriage’ income management, 368 contibutions to modest asset label, 88 mutual obligation regime, pools, 175 same-sex relationships 363–5 family violence cases, 173–4 de facto relationships, 102–5 relationship with family law, future needs component, legal recognition of de facto 359–60 176–7 relationships, 88 reproduction of social identifying and valuing asset status of, 88–9 hierarchies, 360–3 pool, 166–7 Sandel, Michael, 22 socialisation of children, 14 non-financial contributions, Saunders, Peter, 156 social-welfare provisions, 334 168–71 Schroter, Michael, 77 sociobiology overview, 162–5 self-determination, 366, 367 view of family, 14 procedural issues, 161–2 settler colonialism, 308 sociology of family, 25 property-related non- sexual division of labour sole-parent pensioners financial contributions, 168 and public/private mutual obligation regime, special skills concept, 171–3 distinction, 20 363–5 third-party interests, 185–6 concept of, 16–18, 153 spousal maintenance, 335 property provisions consequences for women, and property division, 153 autonomy of women and, 153, 279, 334, 424 clean break philosophy and, 112 dependencies created by, 152, 201–3 divorce powers of 20, 74, 177, 193, 195, 335 debate over need for, 195–9 Commonwealth, 40–1 ideology of, 73 financial agreements and, Protestant view of marriage legal acknowledgement of, 245–6 and divorce, 113 182 history of concept, 191–5 public/private dichotomy legal discourse about, 207 link to child maintenance, concept of, 18–21 naturalising of, 373 339 normalising of, 65 property distribution and, rape in marriage, 123 sexually transmitted debt, 186, 199–201 Rathus, Zoe, 288 187 rationales for, 152, 198, 212, Recognition of Aboriginal shared parental responsibility 213 Customary Laws report, 47 best interests of the child separation from child recovery orders, 320, 329 and, 252, 260–3, 280–2, 332 maintenance, 221–5

index 443

spousal maintenance orders Supreme Courts, 53 theory applications for, 200 jurisdiction, 53, 127 in legal education, 28 child-related responsibilities surrogacy arrangements nature of, 25 and, 211–12 abandonment of children by theory dependence of earning capacity of intended parents, 425 observations, 29 applicant, 208–11 agency and choice, 426–7 third party provisions factors to be considered, altruistic surrogacy, 421, custody disputes, 45–6 205–7 422–3, 424, 428, 429 Tolmie, Julie, 365 judicial interpretation of best interests of the child transsexualism factors, 207–14 and, 431–2 heterosexual marriage and, modiﬁcation of, 200 commercial surrogacy, 424–7, 91–2 principles for assessment of 428, 429, 432 Turnbull government, 371 claims, 203–5 consent in, 423 relevance of factors in considered as infertility value-neutral social science property orders, 214–21 treatment, 428 knowledge, 25 threshold requirements, 201 criminalisation, 429 violence. See family violence States/Territories criminalisation of referral of family law powers commercial surrogacy, 432 Weber, Max, 19 to Commonwealth, 43, criticisms of, 423–8 welfare beneﬁts 295 dispute settlement, 420–3 child support and, 352–3 referral of powers in respect illegality of, 424 welfare of the child principle, of de facto relationships, inconsistencies in State and 255–6, 279, 298 95 Territory laws, 431 welfare power referral of powers to law reform, 432–3 family courts, 267, 294, 295, Commonwealth, 51–2 nature of, 420 296 Stolen Generations, 24, 408 overseas surrogacy welfare state, growth of, 363 Stone, Lawrence, 70, 113 arrangements, 429, 430 Whitlam, Gough, 115 structural functionalism parentage issues, 422, 430–1 Williams, Daryl, 230 view of the family, 12, prohibitions on altruistic women’s rights 15–16, 360 surrogacy, 421 recognition and protection superannuation, 182–5 social irresponsibility of, 424 of, 361–2 Supreme Court of the surrogacy market in Asia, Northern Territory, 54 425–6 youth justice, 394

444 index