Beyond function: state scrutiny of family relationships

In recent years, many jurisdictions have shifted towards a more functional approach to family law, recognising family relationships based on what they do, not what they are. Australia has been at the forefront of this functional revolution, both through legislation and judicial interpretation. This article considers two contributions made by Richard Chisholm — first as a judge, and second, as an academic writer — relating to this functional revolution. First, it analyses the decision of Re Kevin (Validity of Marriage of Transsexual), contrasting the ‘essentialist’ (formal) criteria adopted by previous authorities with Chisholm’s progressive functionalist approach and the advantages it brings. Second, it discusses Chisholm’s academic analysis of the case of Masson v Parsons, in which he highlights. possible legal reforms to which the functional approach to parenthood opens the door. The article concludes by considering the possible disadvantages of a functionalist approach to family law and explores how the law might move forward in a more equitable — and predictable — fashion.