Dignity and the Future of Family Law

Micheil Paton, Phoebe Tapley

Abstract


This paper reviews the approach taken by the Australian Law Reform Commission in its recent family law inquiry and explores whether explicitly incorporating considerations of human dignity may have added value to the process. The paper notes a variety of references to 'dignity' by inquiry stakeholders and the Commission itself, and examines the extent to which selected recommendations arguably sought to promote human dignity. It focuses on recommendations which sought to protect vulnerable parties from harm, enhance families' experiences of court proceedings, and protect their privacy. The paper concludes that explicitly incorporating principles of human dignity may have added value in a number of ways.

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References


A Articles/Books/Reports

Australian Law Reform Commission, Family Law for the Future — An Inquiry into the Family Law System (Report No 135, 2019)

Australian Law Reform Commission, Review of the Family Law System, Discussion Paper No 86 (2018)

Australian Law Reform Commission, Review of the Family Law System, Issues Paper 48 (2018)

Belinda Fehlberg, Lisa Sarmas and Jenny Morgan, ‘The Perils and Pitfalls of Formal Equality in Australian Family Law Reform’ (2018) 46 Federal Law Review 367

Barroso, Luis, ‘Here, There and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse’ (2012) 35(2) Boston College International & Comparative Law Review 331

Capps, Patrick, Human Dignity and the Foundations of International Law (Hart Publishing, 2009)

Department of Justice (Canada), Unified Family Court Summative Evaluation (Final Report, 2009)

Easteal, Patricia, Catherine Warden and Lisa Young, ‘The Kennon “Factor”: Issues of Indeterminacy and Floodgates’ (2014) 28 Australian Journal of Family Law 1

Family Court of Australia, Family Court of Australia 2017–18 Annual Report (2018)

Family Law Council, Families with Complex Needs and the Intersection of the Family Law and Child Protection System (Interim Report, 30 June 2015)

Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (July 2001)

House of Representatives Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003)

House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, A Better Family Law System to Support and Protect Those Affected by Family Violence (2017)

Kaspiew, Rae et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report (Australian Institute of Family Studies, 2015)

Kaspiew, Rae and Lixia Qu, ‘Property Division after Separation: Recent Research Evidence’ (2016) 30(1) Australian Journal of Family Law 1

Parkinson, Patrick, ‘Family Property Division and the Principle of Judicial Restraint’ (2018) 41(2) University of New South Wales Law Journal 380

Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, Vol 2, 2014)

Qu, Lixia et al, Post-Separation Parenting, Property and Relationship Dynamics after Five Years (Attorney General’s Department (Cth), 2014)

Riley, Stephen, ‘Architectures of Intergenerational Justice: Human Dignity, International Law and Duties to Future Generations’ (2016) 15(2) Journal of Human Rights 272

Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Report on the Law and Administration of Divorce and Related Matters and the Clauses of the Family Law Bill 1974 (Parliamentary Paper, No 133, October 1974) 44

Steinmann, Rinie, ‘The Core Meaning of Human Dignity’ (2016) 19(1) Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

Wright, Danaya, ‘Theorizing History: Separate Spheres, the Public/Private Binary and a New Analytic for Family Law History’ [2012] Australia & New Zealand Law and History E-journal 44

B Cases

AH & SS [2005] FamCA 854

Finazzi & Finazzi [2012] FamCA 102

Keating & Keating (2019) 59 Fam LR 158

Kennon & Kennon (1997) 22 FamLR 1

Newport & Newport [2018] FamCA 472

Simic & Norton [2017] FamCA 1007

C Legislation

Australian Law Reform Commission Act 1996 (Cth)

Family Law Act 1975 (Cth)

D Treaties

Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)

Convention on the Rights of the Child, opened for signature 20 December 1989, 1577 UNTS 3 (entered into force 2 September 1990)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

D Submissions to Australian Law Reform Commission, Review of the Family Law System

P Theobald, Submission No 6

Western Sydney CLC, Submission No 8

Australian Dispute Resolution Advisory Council (ADRAC), Submission No 12

Royal Australian and New Zealand College of Psychiatrists, Submission No 18

Law Council of Australia, Submission No 43

PeakCare Queensland, Submission No 72

Victorian Women Lawyers, Submission No 84

R Alexander, Submission No 131

Farrar Gesini Dunn, Submission 140

CatholicCare Diocese of Broken Bay, Submission No 197

Moores and MELCA, Submission No 222

National Family Violence Prevention Legal Services Forum, Submission No 293

Relationships Australia, Submission No 317

E Other

Attorney-General’s Department, ‘Family Violence’

Australian Law Reform Commission, Family Law - Summary of Tell Us Your Story Responses (June 2019)

Commonwealth, Parliamentary Debates, House of Representatives, 9 April 1975, 1375–1377 (Dr JF Cairns)

Commonwealth, Parliamentary Debates, House of Representatives, Family Law Bill, 28 November 1974, 4321–23 (Mr Whitlam)

Declaration on the Elimination of Violence against Women, GA Res 48/104, UN Doc A/48.104 (23 February 1994, adopted 20 December 1993)

Dessau, Justice Linda ‘A Unified Family Court’ (Paper, Third National Family Court Conference, 23 October 1998)

Family Court of Australia, ‘Finding Out About Judgments’

Turnbull, Christopher, ‘Family Law Property Settlements: Principled Law Reform for Separated Families’ (PhD Thesis, Queensland University of Technology, 2017)

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948)

United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (28 September 1984)