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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: THE PERILS AND PITFALLS OF FORMAL EQUALITY IN AUSTRALIAN FAMILY LAW REFORM* Belinda Fehlberg, Lisa Sarmas and Jenny Morgan ABSTRACT In this paper, we identify the influence of formal 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. I INTRODUCTION In May 2017, the Australian federal government announced a 'comprehensive review into the family law system' to be conducted by the Australian Law Reform Commission (ALRC),1 with a final report due by 31 March 2019.2 The terms of reference are wide, and include 'the underlying substantive rules and general legal principles in relation to parenting and property'.3 When announcing the inquiry, the then Attorney-General, George Brandis, said it was 'the first comprehensive review into the family law system since the commencement of the Family Law Act in 1976'.4 In reality, Australian post- separation parenting and child support laws have been the subject of significant and ongoing reform focus and amendment since the 1990s. Property division has not been the subject of major law reform proposals since 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) <https://www.ag.gov.au/Publications/Budgets/Budget20l7-18/Pages/Media- releases/ Transforming-the-family-law-system.aspx>. 2 George Brandis, Terms of Reference: Review of the Family Law System (27 September 2017) Australian Law Reform Commission <https://www.alrc.gov.au/inquiries/family-law- system/terms-reference>. An issues paper was released in March 2018: Australian Law Reform Commission, Review of the Family Law System, Issues Paper No 48 (2018). 3 Brandis, Terms of Reference: Review of the Family Law System, above n 2. 4 Brandis, 'Transforming the Family Law System', above n 1. 5 Family Law Council, Submission to Property and Family Law: Options for Change, July 1999 <https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/Submis

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