Family law and the Australian right

D. Kemp, Foundations for Australian Political Analysis: Politics and Authority, Oxford University Press, 1988

B. Maley, Marriage, Divorce and Family Justice, Centre for Independent Studies, Policy Monograph No. 23, 1992

B. Maley, Family and Marriage in Australia, Centre for Independent Studies, Sydney, Policy Monograph No. 43, 2000.

P. Saunders, Australia’s welfare habit and how to kick it, Duffy & Snellgrove, Sydney, 2004

L. Sullivan, Behavioural Poverty, Centre for Independent Studies Policy Monograph No. 45, Sydney, 2000.

Currently writing a paper on the relation between economic liberalism and social conservatism in Australia. One aspect largely ignored has been the right-wing critique of Australian family law (a topic of interest to new Liberal leader Tony Abbott) . A draft of part of the paper:

Family law reform has been a preoccupation for the Australian right. It is linked to a particular anxiety about gender relations, particularly the uppishness of middle-class women. Its proponents start with a maternalist rhetoric that is quickly inverted, it’s an excellent example of political movements can start out nominally supporting particular values but soon redefine them to mean their opposite. Maley expresses concern about the participation of married women in the paid workforce complaining that child-care policies are biased towards supporting maternal labour-market participation and that the significance of domestic labour is undervalued, he is opposed to paid maternal leave on the grounds it encourages women to return to the workforce (1992, 92-3. 2000, 72). Maley complains that this has been encouraged by excessive levels of taxation of middle-class families compared to lower and higher incomes and the targeting of welfare to lower incomes (2000, 72-77). Maley’s maternalist rhetoric is thus limited in its target he is concerned with a particular model of the middle-class family with a father in the paid economy and the wife at home caring for children. His focus parallels that of the broader right on welfare. Peter Saunders advocates universal tax credits for dependent children (Saunders 2004, 144). Sullivan wants highly regressive tax deductions for the expenses of children (Sullivan 2000, 40). But if we argue that female workforce participation may be driven by the desire to maintain family incomes then targeting low-income women, more likely to receive lower inherent utility from work, would be more appropriate. Yet Saunders is emphatic on the necessity for single mothers to be in paid employment regardless of whether this makes them better of economically, indeed he is hostile towards US-style tax credits to support low-income workers  to him they are just another form of welfare (Saunders 2004, 141-47). Although it is a staple of right-wing rhetoric to argue that the welfare system rather than wage regulation is the agent form of income redistribution, this is merely rhetorical it doesn’t actually mean support for any form of income support, even those strongly focused on increased labour market participation. Maley’s focus is on the middle-class family and his great concern is with keeping women in marriage. To him marriage is a contract and those who break this contract should be punished. To him current family law with its provision for divorce by irrevocable breakdown of relationship means that marriages may end because one party overreacts to routine quarrels and boredom (2000, 170). It is clear from reading Maley that it is women that he sees as likely to end marriages without just cause. Maley makes the classically maternalist declaration that women should be given custody of children as a rule after marriage breakdown, but then declares that this is voided by action that breaks the marriage contract and this includes ‘unilateral’ divorce, indeed a spouse who leaves home without just cause might be considered to have deserted children and thus be obviously facie unfit to care for children (1992, 20, 35, 30. 2000, 175). Maley’s target here are women who separate without his definition of appropriate cause. They should be punished for current family law’s ‘ indifference to the plight of those who believe they have been ill-used or abandoned [which] cannot but help provoke contempt, if not fury’(1992, 46) and ‘A spouse who has been deeply wronged by marital misconduct short of outright criminality has absolutely no recourse before the law for recognition of the wrong done. It is little wonder that some seek to vent their rage upon the court or its officers or unlawfully seek to exact revenge’(2000, 180). David Kemp is similar: ‘The bombings of the Family Court in recent years have been widely attributed to individuals subject to the Court’s decisions who feel that these decisions have ignored values of great priority. These include values of fairness and justice in the treatment of the parties to the court’ (Kemp 1988, 92). So much for the principle of individual moral responsibility for criminal acts of terrorism and child murder. If women commit adultery they should be severely punished all property acquired by the parties since the commencement of the marriage should be under the control of the husband although for a certain period he should be unable to dispose of it without court authorisation (1992, 141). Maley admits that his approach might disadvantage children   as there is no guarantee that wife would receive voluntary maintenance from her former husband sufficient to maintain children at previous standard, but beyond minimum safeguards there should be legal obligations (1992, 41). It is a curious hypothetical example for given Maley’s fault-based approach women would presumably only end up with custody in cases of male wrongdoing. Lucy Sullivan is concerned about how welfare separates women from their husbands and makes possible no-fault divorce (Sullivan 2000, 3, 39). The right claims to be anti-statist to defend liberty against an all-powerful State, but individual freedom is a minor concern at best, they entirely support private actors, such as patriarchal fathers, religious organisations or employers, exercising State-like powers of correction and control. Left-wing enthusiasts for civil society or critics of ‘power-knowledge’ take note.

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  1. [...] family law Family law and the Australian right Geoff RobinsonDecember 2nd, 2009 | Tags: Australian politics, Barry maley, Centre for Independent Studies, David [...]

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