FAMILY LAW IS hot. If it isn’t the subject of the latest television current affairs program, newspaper editorial, opinion piece or Quarterly Essay, it’s being reviewed by yet another committee, or re-engineered by yet another government policy initiative. This essay attempts to explain why family law continues to be a burning issue. Why, in the 21st century, does family law remain such contested terrain? And what is the prognosis for family law in the future? In order to consider these questions, anecdotal, short-term, and localised views are not particularly helpful. It’s necessary, rather, to place Australian family law within the bigger picture of historical and structural forces since the Second World War, and in a comparative frame. As Helen Rhoades and Susan Boyd point out in a recent article in theInternational Journal of Law, Policy and the Family: “The past two decades have witnessed significant debates about child custody law reform in various jurisdictions including Australia, Canada, England, France, Denmark, Portugal, Hong Kong and the United States.”[i] Australia is by no means alone in the trajectory, or in the vehemence, of these debates.

The standard account of the continuing heat surrounding family law is that social change since the 1970s, especially feminism, has eroded traditional male roles in the workforce, the family and the community, and this has engendered a backlash against feminism, or a crisis of masculinity, which is manifested, among other things, in ongoing debates about the shape and purposes of family law.[ii] There are two difficulties with this account in the Australian context, however. First, traditional male roles in the workforce and the family haven’t eroded as much as some of us hoped for. As we have learned from periodic time-use surveys, the father-primary breadwinner, mother-primary homemaker and carer model still prevails to a large extent.[iii] The major difference now is that in addition to doing most of the domestic and child-care work, mothers are also likely to be working part-time. What has eroded in the consumer society is the ability to raise a family on a single income. Secondly, the standard account is too broad brush. It doesn’t help us to understand how and why the contested issues in family law have shifted during the course of the past 30 years.