During the International Year of the Family a lot of discussion was generated about precisely what is a “”family”. On one hand, proponents of the traditional family argued that a heterosexual couple and children constituted “”family”. On the other hand, homosexual groups argued that a homosexual couple with or without children could constitute a “”family”. Other groups argued that various combinations of single parents, step-parents and children constituted “”families”. Again others took the view that its was, so to speak, sterile to debate the precise definition of “”family”; it was more important to work on how families could be helped _ by government, community groups, themselves and others. With the year ended two influential people with quite opposite views of what should be the definition of “”family” came out last week with their views. The Chief Judge of the Family Court, Justice Alistair Nicholson, called for homosexual couples and their children to be recognised as a family, under law and by society. The Leader of the National Party, Tim Fischer, said that if the homosexual agenda were taken to the extreme it would lead to a non-reproductive society. He said any change in the definition of family would lead to a denigration of the status of “”the true family”. Despite their opposing views, the view of both leaders make it clear that definitions in many respects are important. At the end of the Year of Family, for example, there seemed little point in having a raft of recommendations on (ital) how (end ital) government could help “”families” if no-one knows precisely (ital) who (end ital) is to be helped.
Moreover, even if the law does not have to define “”family” it does have to define various family relationships in order to determine various rights and duties that arise from those relationships. Mr Fischer made the pertinent point that “”it is for federal Parliament to define these matters in law”. He also made the impertinent and wrong point that it is not for judges to define these matters in law. In fact, both have the role of defining things. An enormous range of rights and duties depend on definitions of things like “”parent”, “”child”, “”husband”, “”wife”, “”child of the marriage”, “”father”, “”mother”, “”supporting parent” and “”surviving spouse”. The most important legal duties associated with these definitions is the duty to support dependants physically and financially.
The most important rights are the parental rights of access and/or custody, the right to various social welfare benefits, the right to inheritance and various rights under migration law. Parliament lays them down as general definitions with associated rights and duties and the judges interpret the definitions, sometimes clarifying or adding to them, as they apply them in particular cases. Over the years Parliament and the judges have constantly amended common law and statutory definitions to suit changes in society. The common law denied children born outside marriage inheritance rights. It denied de-facto spouses inheritance and maintenance rights. It denied unmarried fathers any chance of custody. However, society has changed and the judicial and legislative approaches have changed.
Justice Nicholson pointed out that homosexuals have been awarded custody of children by the Family Court in many cases. Invariably the homosexual is a natural parent of the child, but from the law’s perspective, the homosexuality is irrelevant because it requires that custody issues be dealt with according to what is in the best interests of the child. Justice Nicholson pointed out that in many cases the best interest of the child were better served by giving custody to the homosexual parent rather than the other parent for reasons unconnected with homosexuality. However, it is a further step, not legislated for, to suggest that homosexual couples should be able to adopt children. There are so few children available for adoption these days that the issue is largely academic, though it would arise in cases where one partner has custody after natural parenthood and the couple want to adopt the child jointly.
At present, homosexuals partners have very few rights or imposable duties with respect to dependency or inheritance, certainly fewer than de-facto partners. Justice Nicholson proposed that homosexual couples should be treated in a similar way as de-facto couples. The justice in this proposal is that a person who has contributed to another’s physical, emotional and financial well-being has a claim upon that person for maintenance and inheritance. This is now recognised in ACT law, and the sky does not appear to have fallen in _ it is a question of justice, not religious morality. In other states the courts have recognised this equity in some circumstances. Another point is that if the partnership gets some legal recognition, then maintenance obligations flow to the individual partners which would otherwise have to be picked up by the state.
Indeed, an interesting dilemma for conservatives (who incessantly argue that people should not continually rely on the state for help) is that if Australia accepts homosexual marriage in law the homosexual couple would be bound by the usual legal dependency rules that would make the partner the first port of call for support and only if that partner were financially unable to do so could the state be called upon. It may be that the Parliament does not have to define “”family” in a precise “”de-jure” way because in the Australian legal tradition rights and duties are not laid down collectively, but individually. But it is important to realise that in defining and redefining family relationships to work out rights and duties of individuals, Parliament defines “”family” in a de-facto way, so to speak.
In the meantime “”families” are being defined as much by actions as words: in the way people are treated by each other in the community _ in schools, homes, hospitals, sporting clubs and so on. The important task for parliamentarians and judges is to ensure that in making definitions and orders about the rights and duties the cumulative effect is to reflect the defining actions in the community and not to redefine the family by stealth.