Introduction

In 1883, John Seeley, the Professor of Modern History at the University of Cambridge, published a history of the British Empire. Within two years The Expansion of England had sold 80,000 copies. He chastised his fellow historians for not recognizing that much of ‘the history of England is not in England but in the Americas and Asia’ and yet denied there was any logic to imperial expansion. ‘We seem, as it were,’ he infamously declared, ‘to have conquered and peopled half the world in a fit of absence of mind.’ Just twenty years later, John Hobson decisively challenged this view of Britons as accidental imperialists in Imperialism: A Study (1902). Hobson had long been preoccupied with the inadequacies of classical liberal economics to either explain or remedy the unemployment and poverty caused by the Great Depression. When covering the South African War as a journalist for the Manchester Guardian, he became convinced that Britain's imperialism was a product of its economic problems at home. Far from being accidental, he argued, imperialism was a consequence of Euro-American economies competing with each other to find new markets for goods and capital that were either not in demand at home or offered too minimal a return on investment. Over the next two decades, Vladimir Lenin and John Maynard Keynes developed his interpretation in different ways to explain the outbreak of World War I and the deepening economic crises of the 1920s. The political and economic crisis of 1931 finally brought an end to Britain's dogged attachment to free trade and the gold standard and deepened the British economy's structural dependence upon the Empire. At that point, only the rarefied circle of imperial historians at Cambridge, where Seeley had left his stamp, could still believe that imperialism had no logic.

Seeley's The Expansion of England was timely; it was published just prior to a period of dramatic growth for the British Empire. As Britain competed with its rival European empires to claim African territories, it annexed 2.5 million square miles in the decade after the Congress of Berlin (1885). At the end of World War One, when the Treaty of Versailles assigned some of the former colonies of the defeated German and Ottoman empires to Britain in 1919, the British Empire reached its zenith.

Introduction

In 1876, Walter Bagehot, the much respected editor of The Economist, reflected on the influence of Adam Smith's Wealth of Nations, written a century earlier. In 1776 its publication marked a major critique of Britain's mercantilist political economy, an almost utopian plea for an era of free trade that appeared distant and remote. Yet a century later, Bagehot remarked,

How then did Smith's once-reviled argument that only free trade could ensure the wealth of nations become accepted as a self-evident truth and part of the natural order of things? It is an especially perplexing transformation given that, as Bagehot acknowledged, it was clearly a ‘political philosophy’ not a simple piece of economic policy, and outside of Britain was neither believed nor practised.

Although Bagehot insisted that the ‘life of almost everyone in England – perhaps of everyone – is … better in consequence of it’, that was, and remains, a matter of great debate. It is beyond question that Britain's embrace of free trade during the nineteenth century helped forge, for the first time, a global economic system. Within this system, Britain took full advantage of its early innovations in industrial manufacturing by exporting finished goods to its Empire and the world in return for natural resources and raw materials. This flow of trade created an increasingly globalized economy that was tied together by British shipping and communication networks, as well as British capital. Secured by the gold standard, the pound sterling became the global currency whose value other currencies were pegged to. As London's capital markets flourished, the stock market boomed. Overseas investment opened up foreign markets by providing railways and sufficient development for the import of British goods. Britain became not just the workshop of the world, but its transport hub and financial centre.

Just as the global economy was shaped around Britain's commitment to the free flow of trade and capital, so the country itself was transformed by it.

Introduction

The focus of this chapter is on the institutional framework of Australian family law. A brief background of Australian family law before Federation will lead into a discussion of the division of powers between the federal and State parliaments after the Constitution was adopted in 1901. The provisions in the Constitution that give power to the Commonwealth Parliament to make laws with respect to ‘marriage’ and ‘divorce’, and the Marriage Act 1961 (Cth) (‘MA’) and the Family Law Act 1975 (Cth) (‘FLA’) that were enacted with respect to these powers, are discussed to demonstrate the special status the relationship of marriage has in Australian law. Further, our discussion will show how this status has been reinforced by the High Court's interpretation of these powers in ways that have confined their scope to the making of laws on marriage as understood in nuclear family terms. The discussion of key High Court cases will provide the backdrop to understanding the limits of the constitutional arrangements. In a changing society, these decisions posed challenges to the efficiency of the system of Australian family law and over the last 30 years have led to a range of significant reforms to accommodate changing perceptions of family (notably, blended families and de facto relationships). As a result of these reforms, family law has increasingly regulated non-conventional relations like de facto and same-sex relationships. Our contention is that, despite these developments, the law continues to privilege the heterosexual nuclear family as the norm. This is most recently illustrated by the High Court upholding the challenge to the validity of the Marriage Equality (Same Sex) Act 2013 (ACT) (‘ACT Act’).

This narrow construction of family and family law has a number of consequences. A narrow construction of family law focused on the creation and dissolution of marriage or similar relationships leaves marginalised families out of the purview of family law. This narrow approach is facilitated by an abstract style of legal analysis that inadvertently supports the nuclear family model by ignoring the issue of how legal knowledge of what a family is constructed through the perspectives of law-makers. So too in constitutional legal analyses, conventions of interpretation create a distance between the law and its interpreters.

Introduction

Despite a significant shift to family mediation in family law, not all child-related disputes are resolved through these processes. Indeed, family mediation may not be appropriate in all cases. Thus, family courts continue to maintain a role in determining child-related disputes. In this chapter the focus is on a selection of different factors that could affect the making of a parenting order which, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘FLA’), requires that ‘a court must regard the best interests of the child as the paramount consideration’.

Changing perceptions of family are evident in how the courts take into account a range of factors in determining what is in the child's best interests. Section 60CC provides a detailed set of factors that must be considered to determine the child's best interests. As we saw in the previous chapter, a set of primary considerations was introduced in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (‘2006 amendments’). Simultaneously, the factors that were listed in the earlier legislation (s 68F(2)) are now listed as additional factors (s 60CC(3)). We examine these additional factors and primarily illustrate how these factors allow the court to be the final arbiter of what constitutes a normal childhood.

The discussion below focuses on selective case law involving the child's views (formerly the child's wishes), cases involving an Aboriginal or Torres Strait Islander child, parenting disputes involving a gay or lesbian parent, as well as disputes involving relocation of the primary child-caring parent. In our examination of these cases, we will revisit the question of the norm-setting function of family law raised in previous chapters. These cases also serve to illustrate the opposite pulls of paternalism, which informs the concept of the child's best interests, and liberalism, which treats the child as an autonomous being. In resolving these cases, the court inevitably functions as the conduit for channelling into family law certain values which reflect the nuclear family norm.

This discussion is followed by an examination of the provisions regulating cases involving child abduction and the enforcement of parenting orders. Our examination demonstrates how the regulatory aspects interact with considerations of the best interests principle. In the area of child abduction, the interests of the parents and children get enmeshed within the international law regime to normalise the concept of the nuclear family.

Introduction

The focus of this chapter is on the legal requirements for entering into a valid marriage, establishing a de facto relationship, and the legal recognition of other non-marriage types of relationship. The discussion continues to build on the argument made in the first two chapters: that family law relies on, and thereby constructs its understanding of the family based on, the nuclear family model.

The chapter begins by providing a short history of the rise of the modern nuclear family. This coverage links changes in understanding of the concept of family to the wider changes that transformed Europe from a feudal to a modern society. Economic, political and religious forces helped shape the family, but as we will see, there are competing views on whether these have had desirable effects on the family and its members. The history of the nuclear family will provide a foundation for understanding the regulation of the family in law and the present tensions that exist in the legal regulation of different family structures. This discussion connects to Chapter 1, where marriage and its suitability as the benchmark for governing all other personal relations was discussed. An overview of the debate on the (non) recognition of same-sex marriage in Australian law will tie the range of theories on the family together, illuminating the continuing stronghold of the nuclear conception of the family in law.

This chapter also draws on sociological theories of family to assist in understanding the changing responses of the law to other familial relations, such as de facto, polygamous, same-sex and domestic relationships. But the shift in understanding is far from complete. The hierarchy in relationships that law has created among married, de facto, registered relationships and domestic relationships will assist in developing our analysis of family law as continuing to privilege the particular social structure of the nuclear family based on the marriage model. In this regard, these developments can be seen not so much as the law merely reflecting the understanding of family life in the literature (for example, the literature canvassed in this chapter contains a mix of reactions to heterosexual marriage and its virtues and vices), but can be better understood as the law engaged in making ideological choices about which relationships should be given greater protection in law than others.

Family law is an area we can all claim to have a vested interest in because of the impact it can have on everyone in society. This book adopts a unique approach to the study of family law by locating the family as central to understanding the content of family law and its development. Approaching the study of family law in this way, we have used an interdisciplinary framework that draws on sociological, historical and economic analyses of the institution of the family. There are many difficulties in trying to move across disciplinary boundaries, but in focusing on what these discourses say about the nature of family our aim is to demonstrate how the law also has its own understanding of what constitutes a family. The different things these discourses say about the family provide a framework for critiquing law's treatment of the family and thereby contribute to achieving a fairer law.

This approach is also unique in developing a distinctly jurisprudential analysis of family law. If, as we contend, the law has its own idea of what is a family then it becomes more clearly apparent how the law is engaged in the construction of the legal meaning of ‘the family’. Hence the title of the book – The Family in Law. In developing this jurisprudential understanding of family law we are guided by the precept that legal meaning is constructed knowledge. In jurisprudential terms this view challenges the dominant positivist conceptions of law, particularly the understanding that the law is ascertainable by a process of applying objective and neutral reasoning. Although positivism has many nuances and has been challenged extensively in various critical discourses, it is also true that it retains a hold on our collective legal imagination. Thus, while cutting edge legal discourses are usually critical in nature, mainstream legal discourses have remained mostly doctrinal. This is well illustrated in the divide that exists in legal scholarship between those academic journal articles that are interdisciplinary and theoretical in an expansive sense and legal textbooks that are largely, if not exclusively, doctrinal.

Introduction

Those Britons born in 1945 who came of age in the political upheavals that engulfed much of Europe and the Americas in 1968 would have been forgiven for thinking that social democracy was here to stay. They lived in a country that had never been as prosperous, where affluence was more evenly spread and where people were healthier, better housed and better educated than ever before. My parents’ generation, born in the 1930s, could raise a family on a single breadwinner's wage in a job that lasted a lifetime and provided a generous pension that sustained a lengthy retirement. They were able to send their children to school and even university, not to mention doctors and dentists, for free. In short, like the collapse of the Soviet Union, everything seemed forever, until it was no more. Unlike the Soviet Union, the end of social democracy in Britain did not come suddenly with the International Monetary Fund's structural adjustment programme in 1976. Instead, like coastlines, it was gradually eroded. In some places, that erosion was rapid, but in other areas, as with rocky headlands, it took longer. In exploring when and how social democracy came to an end, this chapter will also seek to explain why, despite its substantial achievements, its life was so brief.

Parts of the answer to that question lie in the previous chapters. We have already seen how social democracy was always compromised by a series of internal and external constraints. It grew around rather than eradicated the influence and persistent wealth of Britain's ancien regime. A system developed to generate economic growth and to spread its benefits more equitably among the population was designed and managed by a technocratic class of experts who increasingly became a target for criticism. The plans of these experts were rarely realized, for fighting two world wars had left Britain dependent on American loans and American Cold War ambitions. Rather than the bright, modernist, future envisioned in the Festival of Britain, much of the social democratic infrastructure of schools, hospitals and housing stock remained Victorian. This type of social democracy by gaslight would have sufficed for those colonial subjects struggling for independence, having exposed the empty promises of late imperialism to deliver colonial development and welfare.

Introduction to family law

Family law is a ubiquitous area of law. It is an area that touches all of our lives in a way probably not paralleled by any other area of law. If this statement seems startling, it may be because of the association we usually make between family law and dispute settlement. We wish to take this as the starting point of this book and argue that family law is more than a dispute settlement mechanism. It determines many of the legal aspects of our relationships with our parents, spouse or partner, and children. It thus has much wider implications and is a significant factor that shapes our conventional understandings of what is a family. It is the constitutive role of family law that makes it a subject that should be of interest to everyone, and not only to legal scholars and practitioners.

Once it is accepted that it is the legal discourse of family law that informs or influences the wider understandings of ‘what is family’, it is important for judges, the legal profession, policy-makers and family law scholars to also be aware of how their conceptualisations of ‘family’ have a bearing on how we as a society think about family and its regulation by the law. They are after all the people who are most actively engaged in the making of ‘Family Law’. Our book aims to increase awareness of this function of family law and how the law is actively engaged in the construction of ideas about the family and familial relationships.

This is not the usual approach to the study of family law, or any other area of law for that matter. The positivist conception of law, especially the understanding of law as objective and value-neutral, continues to prevail in legal study. In this regard our book challenges this positivist view of legal knowledge by developing the understanding of law as constructed knowledge. As we analyse family law throughout the book, it will become apparent that it is necessary to emphasise that family law is not value-free, but invokes particular understandings of ‘the family’ that have corresponding effects on broader society.

Introduction

We have seen that by 1819 Britain's ancien regime – dominated by the monarchy, the aristocracy and the established Anglican Church – extended its imperial territories and emerged as the strongest state in Europe. The expanding commercial reach of its Empire and a new fiscal-military apparatus allowed the new Leviathan of the British state to wage a hugely expensive series of wars against its rivals while violently securing itself against its reforming critics, whether in colonial Boston or on the bloody fields of Peterloo. By the 1880s Britons, if not their colonial subjects, were governed by a fundamentally different type of state, one still recognizable in the Anglo-American world today. The principles of efficiency and meritocracy displaced those of custom and birth that had characterized Old Corruption. Government was to be cheap and no longer dependent upon debt-financing or excessive taxation. As the business of government became dissociated from the narrow interests of the monarchy, aristocracy and clergy, it was elevated to an Enlightened science whose rationale and practice appeared to be based upon natural laws that were beyond question. This transformation has been described as a ‘revolution in government’, one that is often associated with a new ‘age of reform’ of Britain's political and economic structures. The question then is how, why and when did this happen?

At the heart of this revolution in government was the doctrine of laissez-faire. This French phrase meaning ‘leave alone’ in fact expressed the attempts of Adam Smith and his followers to reimagine the relationship between the state and economic life. Whereas Britain's ancien regime had sought a tight mercantilist control of economic life, proponents of laissez-faire believed that the state should not interfere with the economy or disturb what they believed were the natural rhythms of markets. They believed that the effectiveness of the state should no longer be measured by how much power and control it could exercise, or how many taxes it could raise. Instead, it would be assessed by how successfully it freed markets (so that their supposedly natural forms could maximize the wealth of the nation), as well as how cheaply and efficiently it could operate. Like markets, it was argued, the industry and moral character of respectable families and individuals were best realized when they were left alone by the state to govern themselves.

Introduction

In 1937 a new organization called Mass Observation set out to study the responses of ‘the mass’ to the coronation of King Edward VIII. They believed that scientifically observing the behaviour of the mass would facilitate a better understanding of the political culture that had developed in Britain since the Great War. As we saw in Chapter 6, the foundations of a liberal system of political representation had been laid by 1885, but it was not until 1918 and 1928 that all men and women were able to vote. Just as politics was finally made democratic, culture was increasingly experienced in new mass forms. If rational recreation had helped create an understanding of the individual as the subject of politics in the Victorian era, so mass culture became seen as synonymous with the nature of democratic politics. Increasingly commercialized, the forms of mass culture deepened long-held fears of the demos as an unthinking, easily manipulated and indistinguishable entity. As soon as Britain became a democracy, many across the political spectrum argued that its mass political culture was degraded and set about trying to create a better-informed and more critical citizenry. Hence the formation of Mass Observation. The task of this chapter is to show how the liberal political culture that in the nineteenth century had afforded the vote to very few propertied men as individuals was transformed into a mass democracy.

The work of many hands, this transformation was nested into other historical processes. As the electorate steadily increased before the Great War, political parties assiduously sought to build mass memberships and craft distinct cultures of sociability that reflected their political programmes. Just as the Great Depression helped galvanize colonial nationalist movements in Ireland and India, so in Britain it catalysed the mobilization of a labour politics. Although women were involved in the political parties and trade unions of the labour movement, they were, as the gathering momentum of the women's suffrage campaigns made manifest, still denied the right to vote. These political movements, like colonial nationalism, exposed the ways in which the liberal political system was fatally compromised by its own contradictions. Imbricated in the institutional and social forms of the ancien regime it had sought to displace, it had failed to deliver on its promises.

Introduction

The critique of the British state and the growth of political movements dedicated to its reform did not come out of thin air. They were made possible by the emergence, from Locke to Wollstonecraft, of new ‘Enlightened’ ideas about the nature of government and the rights of men and women. These ideas reached unprecedented numbers of people through the spread of print culture and new forms of association. This was, in turn, part of a broader set of developments known as the Enlightenment that produced a proliferation of new and competing ideas, critical of received wisdom and inherited structures of authority, that extended far beyond politics and were discussed by more and more people in an increasing variety of forms and venues. While the state placed real limits upon what it was possible to publish or say, it nonetheless presided over a dramatic expansion of both the content and form of public debate. This was a remarkable transformation given that during the seventeenth century society had been literally torn apart in the Civil War and Revolution by debates over the nature of religious and political authority. The central question of this chapter is, then, how did society become civil enough that sectarian and political debate became relatively normal, despite occasional outbreaks of large-scale violence like the Gordon Riots and the Peterloo Massacre? Measured in terms of the proliferation of public debate, and appeals to a public as the legitimate basis of support for a position, as well as the numbers and types of voluntary associations, Britain's civil society was the first to emerge from the ancien regimes of Europe.

And yet we should not rush to celebrate an apparent British genius for pluralism, voluntarism and civility. As we saw in Chapter 1, it was what reformers characterized as the unrepresentative and tyrannical nature of the British state – and the continuing dominance of it by the monarchy, aristocracy and Anglican Church – that often helped catalyse debate. In portraying Britain as an ancien regime, reformers were influenced by Enlightened ideas that emanated primarily from the continent of Europe and were informed by imperial encounters further afield. Not all forms of Enlightenment were necessarily radical, even though they commonly included the belief that scientific experimentation and reasoned debate, not the dogmatic application of theology or custom, were the way to understand and organize the world.