This paper provides a brief overview of the role of the Australian Institute of Family Studies in family law reform. The paper is in four parts. First, the Institute’s charter and functions are described. Second, the AIFS’ contributions to family law reform — most notably in the area of research — are summarised. Third, future ideas for research are identified. Finally, the extent to which the Institute generates policy is considered.

We focus on two topics — property law, and the Family Law Reform Act — and ignore other relevant areas of the Institute’s research, such as child support, to which the Institute has made a substantial contribution.

The Australian Institute of Family Studies (AIFS) was established under the provisions of the Family Law Act 1975 to promote the identification and understanding of factors affecting marital and family stability in Australia. It is to do this by ‘the conduct, encouragement and coordination of research and other appropriate means’ (FLA, S 114B (2) (a)). At the outset, it is worth noting that while the Family Law Act does not define ‘stability’, we tend to interpret this to mean ‘healthy functioning’, which itself requires the ability to adapt to change.

The Institute is located within the Family and Community Services Portfolio and reports to the Minister for Family and Community Services, Senator the Hon. Amanda Vanstone.

The Institute has a long history of conducting research into specific family law issues of significant policy relevance. These issues have typically fed into key debates and have attempted to fill gaps in knowledge identified through consultation with various legal bodies (including the Family Law Council, the Attorney-General’s Department, and the Family Court of Australia) and through research and dissemination.

Many delegates here would be aware of the Institute’s early work on matrimonial property in Australia, as described in the Settling Up — Settling Down series. This work grew out of a need to examine the economic consequences of divorce with particular reference to matrimonial property division. The Attorney General’s Department referred the issue of matrimonial property to the Law Reform Commission. The Institute’s study, Settling Up (McDonald 1986), sought to inform this Commission by collecting comprehensive information from a representative cross-section of divorcing couples.

Some of the key findings from that study in relation to property law were that:

1. different contributions of spouses during the marriage often have divergent effects on earning capacity post-divorce;
2. in the majority of cases, superannuation was not taken into account in property in property division;
3. the chances of retaining the matrimonial home as part of the property settlement were considerably greater for those who had remained in rather than left the home upon separation; and
4. a complex interaction existed between the size and composition (basic vs non-basic assets) of the property pool and the value and share of property that each party tended to receive: where the property pool comprised largely basic assets (eg house and furniture), these assets were split roughly equally; but where the property pool comprised more complex assets (eg., businesses, superannuation, and so on) — and thus tended to be of substantial worth — men tended to receive a larger share of these assets (often because they had made a greater contribution to their development).

The follow-up study, Settling Down (Funder, Harrison & Weston 1993), also examined, among other things, the relationship between contributions, needs and equality in relation to property. It demonstrated that decisions made during marriage about the allocation of child care and income earning responsibilities continued to affect financial wellbeing some five to eight years after separation, and highlighted the fact that, unless resident mothers repartnered, they and their children tended to experience considerable financial disadvantage.

Just over a decade later the Institute re-visited the issue of matrimonial property division through the Australian Divorce Transitions Project, a national random telephone survey of 650 divorced Australians conducted in late 1997. This project grew out of consultations with many family law stake holders who participated in a family law research planning seminar hosted by the Institute in conjunction with the Family Law Council. At this seminar potential gaps in family law research were identified, and a strong plea was made by seminar participants for a follow-up study to explore areas of change that might have occurred over the past decade.

Several reports of direct relevance to property law have flowed from the Divorce Transitions Project — most notably those by Grania Sheehan and Jody Hughes on the division of matrimonial property (AIFS Research Paper 25), and John Dewar, Grania Sheehan and Jody Hughes on superannuation on divorce (AIFS Working Paper 18).

The paper on the division of matrimonial property suggested that little has changed in relation to the way that property is divided over the past decade.

The paper on superannuation suggested, among other things, that:

1. despite a growing spread in superannuation over the past decade, former spouses remained ill-informed about each others’ superannuation;
2. men’s superannuation entitlements were generally much greater than women’s; and
3. the likelihood of superannuation of being taken into account on property settlement was a function of several interacting factors (eg., entitlements were more likely to be taken into account if they were more valuable in absolute terms and relative terms — ‘relative’ to the value of other assets).

In summary, these studies have provided information from a broad cross-section of the divorcing population which put into perspective the more dramatic cases that often attract media attention and form the basis of folk wisdom about divorce.

A second example of the way in which the Institute has informed family law policy is through the Family Law Evaluation Project 1996 (Funder & Smyth 1996). In the early 1990s, the Family Law Council was developing proposals to encourage responsible and cooperative parenting. Little was known, however, about what Australians (particularly divorced parents) thought parents should do for their children. Even less was known about public opinion on the responsibilities of parents who did not live together.

In December 1994, the Family Law Council recommended that the impact of the (then) Family Law Reform Bill 1994 be evaluated and that the intended and unintended effects of the legislation on parents and children in the short- and longer-term be monitored. The monitoring was seen as a way of providing feedback to the Family Court of Australia and family law professionals on the acceptance of the reforms so that information and other services might be adopted to enhance community understanding. The Attorney-General’s Department thus commissioned the Institute to undertake a benchmark study of community attitudes to parental responsibilities before the introduction of the Act. This study found that, on the whole, the Australian community appeared to be attuned to the principles underlying the reforms to Part VII of the Family Law Reform Act 1995.

Aside from conducting research, the Institute provides a national information resource on the family by collecting family-related information — including that pertaining to family law — that can be accessed by researchers, government and the community. This information includes material from overseas, thus allowing research from elsewhere in Australia, and overseas, to feed into the policy-development loop.

The Institute is in the early stages of developing it next three-year research plan, and intends to embark on a consultation process in the development of this plan.

Some ideas: as part of the broad policy shift towards encouraging co-parenting after separation, there also remains keen interest in ascertaining the type, quality and amount of contact that non-resident parents have with their children following parental separation, and the monetary costs of this contact. These issues are possible areas of investigation for future Institute research.

One ‘hot’ policy issue is that of parental sharing of time with their children (ie., ‘time sharing’). Time sharing has a number of implications for family law reform — including child support. In an attempt to begin exploring the issue of time sharing and child support, the Institute has developed a set of questions for the Household Income and Labour Dynamics in Australia (HILDA) Survey — which is due to be in the field next month. This longitudinal survey should provide some good base data.

We have been asked to reflect on the question: Does the Institute generate family law policy? This is not an easy question to answer. The processes of policy development are complex, with a wide diversity of players.

At one level, we simply collect data, analyse them, and then examine their implications for policy. We also put up ideas to stimulate informed debate — such as the ‘opportunity costs’ of caring for children, and, more recently, issues surrounding the payment of child support for young adult children.

At another level, however, some have suggested that we play a role as ‘attitude makers’, and that the weight of our data and research evidence about what’s happening to different families helps create attitudes to policy issues which, in turn, generates policy.

At what point the mirror simply reflects social reality or also subsequently creates it has been a debate of long standing in the social sciences. It does, however seem fair to say that the Institute’s research into property law and the Family Law Reform Act has certainly influenced family law reform in Australia.