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46 Fed. L. Rev. 367 (2018)
The Perils and Pitfalls of Formal Equality in Australian Family Law Reform

handle is hein.journals/fedlr46 and id is 385 raw text is: 


               Belinda Fehlberg, Lisa Sarmas  and Jenny  Morgan

In this paper, we identify the influence of formal equality - and more specifically, formal
gender equality (that is, treating men and women the same) -in central areas of major
Australian family law reform over the past 20 years. Given the influence of formal
equality and our concerns regarding this trend, we consider whether equality-based
arguments should be abandoned  entirely, at least in the family law context, and explore
alternative approaches that could reframe the debate.

In May  2017, the Australian federal government announced a 'comprehensive review
into the family law system' to be conducted by the Australian Law Reform Commission
(ALRC),1 with a final report due by 31 March 2019.2 The terms of reference are wide,
and include 'the underlying substantive rules and general legal principles in relation to
parenting and property'.3 When announcing  the inquiry, the then Attorney-General,
George Brandis, said it was 'the first comprehensive review into the family law system
since the commencement  of the Family Law  Act in 1976'.4 In reality, Australian post-
separation parenting and child support laws have been the subject of significant and
ongoing reform focus and amendment   since the 1990s. Property division has not been
the subject of major law reform proposals since 19995 and continues to operate on the

*   The authors would like to thank Juliet Behrens who kindly read a draft of the article, Bruce
    Smyth and Heather Crawford who assisted with some data queries, the two anonymous
    reviewers who provided detailed comments, and Ron Levy of the Federal Law Review for his
    help throughout the submission process.
**  The authors are colleagues at Melbourne Law School, University of Melbourne.
1   George Brandis, 'Transforming the Family Law System' (Media Release, 9 May 2018)
    releases/ Transforming-the-family-law-system.aspx>.
2   George Brandis, Terms of Reference: Review of the Family Law System (27 September 2017)
    Australian Law Reform  Commission  <https://www.alrc.gov.au/inquiries/family-law-
    system/terms-reference>. An issues paper was released in March 2018: Australian Law
    Reform Commission, Review of the Family Law System, Issues Paper No 48 (2018).
3   Brandis, Terms of Reference: Review of the Family Law System, above n 2.
4   Brandis, 'Transforming the Family Law System', above n 1.
5   Family Law Council, Submission to Property and Family Law: Options for Change, July 1999

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