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"There's no gender bias here!": Gender equality and family court custody decisions - The legacy of McMillan v Jackson

Vickers, L. (1996) "There's no gender bias here!": Gender equality and family court custody decisions - The legacy of McMillan v Jackson. Sister in Law, 1 . pp. 33-51.

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In the recent decision of McMillan v Jackson, the Full Court of the Family Court of Australia clearly denounced judicial reliance on stereotypical gender assumptions regarding proper parental roles, in the determination of custody applications:

Whilst a trial Judge does not, and is not, expected to leave his or her common sense and worldly experience outside the door of the court, a Judge must leave outside the court any pre-conceived notions which he or she may entertain, as a private individual, about the roles which males and females ought to adopt in society.

However, any claims that such a pronouncement signals a Family Court free of gender bias and committed to gender equality, at least in relation to custody determinations, are somewhat misguided. This paper discusses the approach taken by the Full Court in the McMillan case to gender equality and exposes the limitations of this approach in assisting efforts to counter the oppressive effects on women of the systemic and institutionalised gender role divisions which are ever prevalent in Australian families and reinforced in our laws relating to custody.

Item Type: Journal Article
Murdoch Affiliation(s): School of Law
Publisher: Enid Russell Society, School of Law, Murdoch University
Copyright: Enid Russell Society
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