Essay

Decades of panic

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.

It appears, in fact, that the three decades since the enactment of the Family Law Act 1975 can be very roughly divided up as follows. The first decade was the decade of the divorce panic. The second decade was the decade of the property panic. And the third decade has been the decade of panic about children.

 

THE 1950s AND early 1960s, in Australia and elsewhere, was a period of unprecedented social stability, characterised by both high male employment rates and high marriage rates.[iv] The later 1960s and 1970s, by contrast, saw the postwar baby boomers begin to reach adulthood, the rise of new social movements, including feminism, a substantial increase in married women's workforce participation, greater control over fertility, greater individualism and, accompanying these changes, a general re-evaluation of marriage and relationships.[v] Between 1961 and 1981, major divorce reforms occurred in 22 countries,[vi] Australia among them. Against the backdrop of the unusual social stability and marriage rates of the postwar years, however, it was not surprising that the early years of the Family Law Act saw concerns expressed about the rising divorce rate in Australia and an inquiry by a Joint Select Committee on the Family Law Act, which reported in 1980. But empirically, after the initial peak following the enactment of the Family Law Act, the divorce rate fell and plateaued at a level that has changed little since 1980. That is, for more than 20 years, the divorce rate has sat between 2.5 and 2.9 divorces per 1000 population[vii] – around the same rate as Canada and the United Kingdom, and lower than the US[viii] – hardly a figure about which a panic could be sustained. The average number of children per divorce has also remained constant at around 1.9 since the early 1980s.[ix]

Despite some resurgent recent concern about the level of divorce from conservative commentators and politico-religious groups, it appears that divorce is unlikely to re-emerge as a major issue in family law. The contested issues around marriage these days are not to do with divorce, but low marriage rates (although that trend now also appears to be in reverse in Australia), low fertility rates and attempts by gay men and lesbians to gain access to the institution of marriage.

From a policy perspective, in an era in which the welfare state is being wound back and there is renewed emphasis on individual responsibility rather than state provision, divorce per se is unproblematic so long as it does not result in the consumption of major public resources. One way in which it might do this is by increasing the welfare dependency of mothers and children after divorce, but this has been tackled by means of the child support scheme, introduced in 1988 and the subject of a recent major review and report published in May this year, In the Best Interests of Children – Reforming the Child Support Scheme, which is discussed further below.[x] Another way in which divorce might consume significant public resources is through parties resorting to the courts to resolve disputes over "ancillary" matters – such as maintenance, property division and arrangements for children post-separation. This risk has been addressed in a number of ways, including making child support a matter of administrative assessment by the Child Support Agency (CSA), and the increasingly coercive "encouragement" for parties to use dispute-resolution processes such as mediation, conciliation and counselling, and to take responsibility for achieving their own solutions to family-law problems,[xi] while cutting the Family Court's funding so that it is beset by chronic problems of delay engendering widespread dissatisfaction. The Attorney-General's recent launch of fifteen Family Dispute Resolution Centres is the latest move in this ongoing procedural saga.

A further factor militating against any renewed divorce panic is the fact that divorce has become increasingly meaningless as a result of the children panic, as set out below. The new mantra of "shared parenting" after divorce comes as close as possible to preventing couples from actually separating. In the words of Professor Patrick Parkinson, chair of the Family Law Council and of the Ministerial Taskforce on Child Support in evidence to the House of Representatives Standing Committee on Family and Community Affairs in 2003: "I think that divorce no longer means the end of a marriage where there are children. It means the restructuring of a marriage into two separate households. And how we deal with that is the fundamental challenge for us all."[xii] Or as Swedish and English feminist academics Eriksson and Hester prefer to put it: "Fatherhood has replaced marriage as the social institution maintaining men's control of women."[xiii]

 

AFTER THE INITIAL divorce panic subsided, attention shifted to the aspects of the Family Law Act relating to property division. The concern arose initially around the issue of post-divorce welfare dependency,[xiv] but there was also interest in overseas regimes that provided for equal sharing of matrimonial property after divorce. Proposed amendments along these lines were referred to the 1980 Joint Select Committee on Family Law and the committee received numerous submissions indicating gendered dissatisfactions with the current law. "Men gave the impression that the present law operate[d] as an asset-stripping device, while women complained that their contributions as homemaker or parent [were] not recognised."[xv] The committee recommended that the Australian Law Reform Commission (ALRC) undertake a study of the legal implications of the proposed amendments, and that a survey of community attitudes also be undertaken on the proposal. These recommendations resulted in the ALRC's Report No.39: Matrimonial Property (1987),[xvi] detailed empirical work by the Australian Institute of Family Studies on how separating couples actually were dividing property, reported in Settling Up (1986)[xvii] and Settling Down(1993),[xviii] and a further Joint Select Committee report in 1992. The debate turned on whether the rules about property division should pay attention to individual circumstances and future needs (which supposedly favoured women, particularly those who had been full-time homemakers), or whether they should reflect the alluringly simple and straightforward idea of a 50/50 split of matrimonial property (which might, in theory, be more favourable to men, although disguised as equality). At times, this debate was abstracted into a contest between different kinds of legal norms – rules versus discretion – but the substance of what was at stake was never far from view.

The empirical studies made it clear, however, that the rules (or discretions) that supposedly benefited women in fact did not do so. The high-profile cases in which the wives of wealthy men walked away from the Family Court with vast and undeserved riches were, in fact, quite rare. More typically, women – and children – experienced impoverishment after divorce and men demonstrated much greater capacity than women to re-establish themselves financially post-divorce.[xix] These findings were confirmed by data from the Australian Institute of Family Studies' subsequent Australian Divorce Transitions Project.[xx] The empirical studies both in Australia and overseas also made it clear that a move to strict 50/50 property division would leave women worse off.[xxi] In this context, it was difficult to argue for a change that would have such a blatantly adverse impact on women. A discussion paper put out by the Commonwealth Attorney-General's Department in 1999 represented the last gasp for the idea of formal equality in property division. There was simply not enough support for the 50/50 proposals to counteract the chorus of protest they elicited. Instead, recent reforms to the property provisions of the Family Law Act have focused on the more practical issue of incorporating superannuation – an increasingly significant matrimonial asset since the enactment of the superannuation-guarantee legislation as part of the Hawke Labor government's "social wage" reforms – into the matrimonial property regime.

Part of the reason for the lack of support for more far-reaching matrimonial property reform is that serious property division is a minority issue. The minority for whom this is an issue is probably equally well, if not better, served by another set of recent amendments to the Family Law Act relating to pre-nuptial agreements, and it's hard to see this aspect of family law reigniting as a concern. Instead, the focus of family law debates has shifted to children and become dangerously overheated.

 

CLEARLY, THE DISTRIBUTION of children among their parents after divorce is an issue that has more popular resonance than property division. The fact that children of de facto relationships are also dealt with under the Family Law Act broadens that impact still further. Concerns that the Family Court's distribution of children was biased against men were raised relatively early and resulted in a report by the court in 1983 attempting to refute this claim by reference to the evidence of settlement and litigation outcomes,[xxii] and a subsequent report by the Family Law Council, Patterns of Parenting, in 1992.[xxiii] But the question of post-divorce parenting didn't really come to the boil until the mid-1990s.

Several developments occurred in the late 1980s/early 1990s that, in my view, underpin the development of a full-scale panic about children. First was the economic restructuring introduced by the Hawke government in the late 1980s, which exposed the Australian economy to global competition. Global competitiveness required a smaller public sector, reduced labour costs and greater flexibility of labour utilisation, which were achieved by means of corporatisation and privatisation, the introduction of enterprise-level, productivity-based wage bargaining and the rise of precarious, low-quality employment. For example, between 1988 and 2003, the proportion of the labour force in full-time permanent employment fell from 75 per cent to 61 per cent.[xxiv]In the decade 1989-1999, the proportion of men in full-time work declined from 85 per cent to 75 per cent. Full-time jobs grew by 5.5 per cent in the 1990s, while part-time jobs grew by 61 per cent.[xxv] Casual employees increased from less than one fifth (19 per cent) of all employees in 1988 to more than a quarter (26 per cent) of all employees in 1996.[xxvi] Australia's current low unemployment rate, therefore, does not signal economic prosperity, but rather the rise of the working poor, and the phenomenon of labour market churning, whereby people move constantly between unemployment and poorly paid, casual and part-time jobs, which they must accept as a condition of continued support when they are again unemployed.

The economic changes of the 1990s also saw a shift from manufacturing and trades employment to services employment and, hence, in Australia's gender-segregated labour market, higher job growth for women than for men, although it is important to note that the great majority of these jobs are part-time. At the same time, casualisation of male employment advanced more rapidly (off a low base) than did casualisation of female employment (off a much higher base). In 1988, only 12 per cent of men were employed on a casual basis, but this had doubled to 24 per cent of men employed casually in 2003.[xxvii] Thus, the former female ghetto area of casual employment became more gender mixed.

The results of these economic changes for family law were twofold. First, a lower proportion of men had full-time, all-consuming jobs; conversely, a higher proportion of men had enforced time to spend with their children (though of course it must be acknowledged that spending time with doesn't necessarily mean actual caring for). Secondly, a lower proportion of men were in a position successfully to re-establish themselves financially after divorce, thereby putting pressure on their capacity to sustain child-support payments and creating incentives for men to obtain the welfare benefits available to carers of young children.

As suggested earlier, feminism might be said to have achieved psychic but not economic independence for Australian women. Women have been empowered to leave bad marriages but not sufficiently empowered to financially support their children after they do so. Under the Family Law Act, as originally enacted, the amount of child support ordered was discretionary and judges used their discretion largely to shift women's and children's economic dependence from former husbands to the state, thereby providing sufficient means for both the custodial and non-custodial parents to live on.[xxviii] Ironically (or not), the change in child-support policy and the move to standardised assessment and collection through the Child Support Agency occurred in 1988-89, at the very moment when economic restructuring was beginning to undermine the continuity and value of men's jobs. In a context in which contact fathers could no longer make arguments to a court about affordability, and had much less capacity to avoid payments, it's hardly surprising that they started demanding something more in return – that is, more of a role in their children's lives – and exploiting incentives in the legislation that enable them to pay less if they undertake more care. Resident mothers are also worse off as a result of these changes. Unless they have sufficient income not to need to rely on parenting payments, they are locked into the CSA system but still bear the risk of non-payment by the father, a risk that has been reduced compared with the old system, but by no means eliminated.

The recent proposals of the Ministerial Taskforce on Child Support, if enacted, have the capacity to take some of the heat out of debates over the operation of the child-support scheme, by basing assessments on objectively determined costs of supporting children of different ages, and on the income of both parents, rather than on a fixed proportion of only the non-resident parent's income. But they will not assist in the large proportion of cases in which there is simply not enough combined parental income adequately to meet the costs of the children, and they will continue to provide strong incentives for men to reduce financial transfers to their ex-partners and increase their access to welfare and tax benefits by entering into "shared care" arrangements. While the taskforce acknowledged that "shared care" actually costs more, "because of the duplicated infrastructure costs of running two households ... and the costs involved in exercising contact, especially transportation",[xxix] it did not factor this into any of its formulae for calculating child-support payments. The possible moral hazard that resident mothers might be encouraged to minimise their private incomes in order to retain full welfare benefits and maximise their child-support payments has been obviated by the "welfare to work" reforms that will require mothers receiving parenting payments to seek paid employment (however poor quality and poorly paid) once their children reach school age.

While the economic shifts in Australia since the late 1980s/early 1990s have created increased pressures for the family law system, those pressures have been simultaneously heightened by a broader cultural shift in attitudes to children and parenting. Lower fertility rates and smaller household sizes have seen changes in the construction of childhood, with more time and effort invested in the education and socialisation of children, changed authority relations between children and adults,[xxx] and the rise of "children's rights".[xxxi] "Parent-child relations [have become] more emotionally laden",[xxxii] and in an age of freely available divorce, children have become "the source of the last remaining, irrevocable, unexchangeable primary relationship".[xxxiii] These notions have given rise across the Western world to the concepts of ongoing parental responsibility and the right of children to have continuing, regular contact with both parents after separation, and a preference for joint physical custody arrangements or "shared care". These concepts and preferences have been embraced internationally – for example, in the United Kingdom and France, as well as Australia,[xxxiv] and across the political spectrum in Australia, ranging from the Catholic Right of the ALP to the Coalition backbench, from the Family Law Council to the fathers' rights movement. The various motives for embracing these ideas appear to encompass a genuine concern for children's welfare (despite a lack of evidence that shared parenting actually does improve outcomes for children[xxxv]), a pragmatic understanding that shared parenting avoids the need to choose which parent the children will live with and, hence, has the potential to eliminate many family-law disputes, and the self-interested pursuit of property rights in children and/or continuing control over one's ex-spouse.

In turn, this range of motives demonstrates that shared parenting can never be a legislative panacea for family-law disputes. Rather, it has become the very thing contested. On the one hand, it articulates well with contemporary arguments – advocated by the men's movement among others – about the social problem of fatherlessness.[xxxvi] (By contrast, up until the end of the Second World War, fatherlessness caused by war, industrial accidents and disease was not seen as a major social problem.) This ideology of fatherhood is attractive because it transforms men's sense of economic disempowerment and resentment into something noble and good and worth valuing. It is ideological precisely because it shores up a particular set of power relations rather than bearing any necessary resemblance to reality. On the other hand, women's advocates point to the reality that mothers continue to be primary care givers prior to separation and that few separating couples possess the high levels of co-operation, co-ordination, economic resources and workplace flexibility required to sustain successful shared parenting.[xxxvii] Moreover, where there has been violence in the relationship, any requirement of regular contact with the violent partner exposes the child and his or her other parent to ongoing abuse and control, and to the risk of serious harm.

The policy debate over family law is stuck between these competing contentions. The Family Law Reform Act 1995, which first asserted that parents share responsibility for the care and welfare of their children and that children have a right to ongoing contact with both parents, has given rise to a pro-contact culture in family-law decision making,[xxxviii] which in too many cases leaves women and children with unsafe and unworkable contact orders that have a high rate of breakdown.[xxxix] At the same time, the Family Law Reform Act failed to deliver the 50/50 post-separation parenting arrangements and the ability to enforce contact orders that fathers' rights groups consider desirable, and they have consequently continued to lobby for further changes.

The family-law system was subsequently reviewed by the Pathways Committee, whose very sensible report,Out of the Maze (2001),[xl] recognised that different families needed different kinds of dispute-resolution processes, depending on their circumstances. The recommendations of the Pathways Committee were sidelined, however, in favour of a new inquiry into parenting arrangements after separation by the House of Representatives Standing Committee on Family and Community Affairs, which resulted in the report Every Picture Tells a Story in 2003.[xli] In response to this report, the Commonwealth Attorney-General's Department has drafted the Family Law Amendment (Shared Parental Responsibility) Bill, to be introduced in the spring 2005 session of parliament.[xlii] The Bill will amend the Family Law Act to strengthen its shared-parenting provisions while, at the same time, providing greater acknowledgment of the need for protection from family violence, thus giving something to both sides. It is unlikely to satisfy either.

The amendments also propose the introduction of a quicker and less adversarial method of dealing with children's matters coming before the Family Court. As noted earlier, one way to minimise the costs of divorce to the state has been to channel family dispute resolution away from the courts. Another strategy to achieve a similar end, widely adopted in the United States, the United Kingdom, and other Australian jurisdictions, is the introduction of so-called "technocratic justice" – the informalisation, streamlining, rationalisation and active management of cases, which enables courts to handle increasing caseloads more rapidly, efficiently and effectively with fewer resources. The establishment of the Federal Magistrates Court was one step down this road in family law, and the mandating of less adversarial procedures in children's matters is arguably another. A pilot of the less adversarial method is being conducted in the court, but since the results of the evaluation of the pilot are not yet available, its actual efficiency and effectiveness are unknown.[xliii] As Rhoades and Boyd have observed, however, child-custody law reform in the current conjuncture inevitably consists of political compromises between competing "consumer" groups, at the expense of either internal coherence or systematically evidence-based policy development.[xliv]

 

FAMILY LAW IN Australia operates in an economic context in which there are not enough good-quality jobs to go around (a situation that will only be exacerbated by the Federal Government's proposed industrial relations reforms), in a policy context in which the state refuses to share responsibility for children's economic wellbeing except at the most minimal level or to invest in adjudication, and in a social context in which thinking about gender and parenting roles may have changed, but the actual gender division of labour in the family has not changed a great deal over the past 30 years. The different economic, social and ideological positions of men and women come to a head in disputes over post-separation parenting arrangements, and fester when decisions fall to be made either by a bureaucracy which lacks the capacity to take circumstances into account, or by a court which lacks the resources to deliver justice in a timely manner.

The fact that the family has, on the whole, failed to become an institution practising internal equality, and that gendered social and economic inequalities prevail outside it, render arguments for or presumptions of formal equality between partners at the point of separation – first in relation to property, and now in relation to children – highly problematic. One way out of this impasse would be to use the Family Law Act to create an incentive to alter the gender division of labour within intact families. If children automatically have a right of contact with both parents after separation, fathers need make no effort to play an active caring role prior to separation. By comparison, if the Family Law Act created a presumption that post-separation parenting arrangements should, as closely as possible, reflect each party's relationship with the children prior to separation, that might more effectively invigorate fatherhood and shared care both before and after separation, and reduce the demand for third party dispute resolution. Meanwhile, in considering its response to the recent child support review, the Government could consider one recommendation omitted by the Ministerial Taskforce – that stable, reliable, family-friendly, decently-paid employment opportunities for both men and women would go further to solving the problems of child support (and other problems besides) than any other conceivable reform. 

 

[i] Helen Rhoades and Susan B. Boyd, "Reforming Custody Laws: A Comparative Study" (2004) 18International Journal of Law, Policy and the Family, 119.

[ii] E.g. Sandra Berns, Women Going Backwards: Law and Change in a Family Unfriendly Society (Ashgate, Aldershot, 2002), 89.

[iii] See Rhoades and Boyd, above note 1, 133.

[iv] Kathleen Funder, Margaret Harrison and Ruth Weston (eds.), Settling Down: Pathways of Parents After Divorce (Australian Institute of Family Studies Monograph No.13, Melbourne, 1993), 17.

[v] Ibid, 18-19.

[vi] Ibid, 20.

[vii] Family Law Council, Statistical Snapshot of Family Law 2000-2001 (Commonwealth of Australia, Canberra, June 2002), 4.

[viii] Berns, above note 2, 94.

[ix] Family Law Council, above note 7, 7.

[x] Ministerial Taskforce on Child Support, In the Best Interests of Children – Reforming the Child Support Scheme (Commonwealth of Australia, Canberra, May 2005).

[xi] See, e.g. Family Law Act 1975 (Cth), Part III, introduced by the Family Law Reform Act 1995 (Cth); Attorney-General's Department, "The Delivery of Primary Dispute Resolution Services in Family Law (August 1997) and "The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (1998); Attorney-General's Department, "A New Family Law System: Government Response to 'Every picture tells a story'" (June 2005).

[xii] "Costing the Children", Four Corners, ABC TV, 13 June 2005.

[xiii] Maria Eriksson and Marianne Hester, "Violent Men as Good Enough Fathers? A Look at England and Sweden" (2001) 7 Violence Against Women 779, 792 (quoting G. Nordberg).

[xiv] Margaret Harrison, "Introduction", in Peter McDonald (ed.), Settling Up: Property and Income Distribution on Divorce in Australia (Prentice-Hall, Sydney, 1986), 5.

[xv] Ibid, 10.

[xvi] Australian Law Reform Commission, Report No.39: Matrimonial Property (ALRC, Sydney, 1987).

[xvii] Above note 14.

[xviii] Above note 4.

[xix] See, e.g., Settling Up, above note 14, 309-12; Settling Down, above note 4, 11, 237.

[xx] Grania Sheehan and Jodie Hughes, The Division of Matrimonial Property in Australia (Australian Institute of Family Studies, Melbourne, 2001).

[xxi] See, e.g. Settling Down, above note 4, 37.

[xxii] F.M. Horwill and Sophie Bordow, The Outcome of Defended Cases in the Family Court of Australia (Family Court Research Report No.4, Sydney, 1983).

[xxiii] Family Law Council, Patterns of Parenting After Separation (Commonwealth of Australia, Canberra, April 1992).

[xxiv]ABS, Weekly Earnings of Employees (Distribution) Australia (Cat.6310.0, 1998); ABS, Employee Earnings, Benefits and Trade Union Membership (Cat.6310.0, 2004).

[xxv] Jeff Borland, Bob Gregory and Peter Sheehan, "Inequality and Economic Change", in Jeff Borland, Bob Gregory and Peter Sheehan (eds.), Inequality and Economic Change in Australia (Centre for Strategic Economic Studies, Victoria University, Melbourne, 2001), 10.

[xxvi] ABS, Employee Earnings, Benefits and Trade Union Membership, above note 24.

[xxvii] Ibid.

[xxviii] Berns, above note 2, 96.

[xxix] Ministerial Taskforce on Child Support, above note 10, "Summary Report and Recommendations", 4.

[xxx] Robert van Krieken, "The 'Best Interests of the Child' and Parental Separation: on the 'Civilizing of Parents' " (2005) 68 Modern Law Review 25, 42-43.

[xxxi] See, e.g., the United Nations Convention on the Rights of the Child (1989).

[xxxii] van Krieken, above note 30, 32-33.

[xxxiii] Ibid, 43 (quoting Ulrich Beck).

[xxxiv] See, e.g. Mavis Maclean (ed.), Family Law and Family Values (Hart Publishing, Oxford, 2005), especially chapters 6 and 7.

[xxxv] Helen Rhoades, "Posing as Reform: The Case of the Family Law Reform Act" (2000) 14 Australian Journal of Family Law 142, 151; Rhoades and Boyd, above note 1, 132; van Krieken, above note 30, 38.

[xxxvi] See, e.g., Bruce Smyth (ed.), Parent-Child Contact and Post-Separation Parenting Arrangements (Australian Institute of Family Studies Research Report No.9, Melbourne, 2004).

[xxxvii] See, e.g., Rhoades and Boyd, above note 1, 133.

[xxxviii] Toni Dick, "She Gave as Good as She Got? Family Violence, Interim Custody/Residence and the Family Court" (1998) 14 QUT Law Journal 40; John Dewar and Stephen Parker, "The Impact of the New Part VII Family Law Act 1975" (1999) 13 Australian Journal of Family Law 96; Helen Rhoades, Reg Graycar and Margaret Harrison, The Family Law Reform Act 1995: First Three Years (University of Sydney and Family Court of Australia, Sydney, 2000); Rhoades, above note 35; Patricia Easteal, Juliet Behrens and Lisa Young, "Relocation Decisions in Canberra and Perth: A Blurry Snapshot" (2000) 14 Australian Journal of Family Law 234; Miranda Kaye, Julie Stubbs and Julia Tolmie, Negotiating Child Residence and Contact Arrangements Against a Background of Family Violence (Families, Law and Social Policy Research Unit, Socio-Legal Research Centre, Griffith University, Brisbane, 2003).

[xxxix] Dick, ibid; Rhoades, Graycar and Harrison, ibid; Kathryn Rendell, Zoe Rathus and Angela Lynch for the Abuse Free Contact Group, An Unacceptable Risk: A Report on Child Contact Arrangements Where There is Violence in the Family (Women's Legal Service Inc, Brisbane, 2000); Helen Rhoades, "The 'No Contact' Mother: Reconstructions of Motherhood in the Era of the 'New Father' " (2002) 16 International Journal of Law, Policy and the Family 71; Kaye, Stubbs and Tolmie, ibid.

[xl] Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (Commonwealth of Australia, Canberra, July 2001).

[xli] House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Inquiry into Child Custody Arrangements in the Event of Family Separation (Commonwealth Parliament, Canberra, December 2003).

[xlii] Exposure Draft – Family Law Amendment (Shared Parental Responsibility) Bill 2005; see also the House of Representatives Standing Committee on Legal and Constitutional Affairs report on Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill, tabled in parliament on 18 August 2005.

[xliii] The evaluation is being undertaken by myself and Dr. Jenn McIntosh, Family Transitions, Melbourne.

[xliv] Rhoades and Boyd, above note 1.

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