It is sometimes said of family law that it has either no rules or too few to be useful. This gives it a sense that it is not ‘really law’ at all.
The thesis argues that, contrary to the belief that the exercise of jurisdiction under the Family law Act 1975 is largely discretionary, it is actually characterised by the development of guidelines that perform a function similar to precedent in other civil courts. The thesis examines, from the perspective of American Legal Realism, the growth of guidelines in family law. It concentrates on their development and their effects on children, the division of property and the procedural law. It assesses the growth of guidelines and the rule-making that has taken place in family law, both in statutory changes and judicially.
The thesis examines the judicial techniques that have been used to formulate guidelines and the way in which they are supervised by the Full Court of the family Court. The thesis considers whether judicial decision-making within a legislative structure with few rules is a satisfactory method of developing a consistent and disciplined family law. My conclusion is that this is not appropriate and that it leads to a family law that appears, arbitrary, uncertain and lacking in clarity. I then argue that legislative provisions that allow parties to a dispute to negotiate according to rules best meet these problems.