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Legal History |
COLIN JAMES[∗]
Almost 2000 people made submissions to the Australian Enquiry on ‘Child Custody Arrangements in the Event of Family Breakdown’ leading to the report tabled on 29 December 2003 by the House of Representatives Standing Committee on Family and Community Affairs.[1] The Report’s recommendations favoured a move towards ‘shared parenting’ of children after separation, and advocated a considerable change in family court procedures.[2]
A motivating factor in the ‘shared-custody’ inquiry was the belief commonly expressed by men’s groups that family court decisions unfairly favoured women in disputed cases over child custody. This belief has persisted since the commencement of the Family Law Act 1975 (Cth) and arguably has influenced several law reforms designed to correct the perception that family court decisions are typically biased against the father.[3] This paper examines the background to these reforms by analysing the changing position of the father in child custody law in Australia.
There were two major historical shifts in the position of the father in Australian family law matters involving children. The first involved the change from ‘father-right’, the traditional common law rule giving men all responsibility for their (legitimate) children, which peaked around the mid-nineteenth century to ‘maternal preference’, a bias in favour of mothers that was most apparent in the 1950s. The second change was towards a more considered and particular application of the child’s best interest which did not presume in favour of either parent because of their gender. The second change is associated with the Family Law Act 1975, although recent developments suggest the beginnings of a third shift, perhaps in a sense, completing the cycle by favouring the interests of the father once again.
In the history of family law, child custody disputes often caused more anxiety than other matters such as property settlement or maintenance. To 'lose custody' of one's children was a horrifying prospect for a parent, especially in the atmosphere of anger surrounding a divorce. Domestic violence was involved in many cases, whether or not it was disclosed to or considered by the court. In some cases, parents bargained for custody by foregoing their entitlements in property settlement, and in other cases they fought 'all the way' for their custodial rights at court.
Around 1900, the law on child custody in Australia and England was virtually identical, since the colonial legislators had followed English direction and almost all precedent decisions came from English courts. During the twentieth century, however, Australian influences were visible in how the courts applied the principles, as local experiences changed the significance of family, marriage and divorce. In addition, the Australian movement from father-right towards child-right happened fitfully under the sway of political discourses about fatherhood, nationalism, the role of the mother and the importance of the family.
The Australian courts began to develop their own approach to child custody law during the first half of the twentieth century, departing from the early common law position that gave fathers full custody rights to their ‘legitimate’ children in most cases.[4] Debates over child custody law intensified during the second half of the century as increasingly courts decided cases on their particular facts rather than grand principles that favoured the mother or the father.
In the majority of divorces that involved children the parents avoided the courts and decided informally about where their children should live. The law changed according to changes in statutes, which were relatively rare, and shifts in the attitudes of judges who decided the most disputed cases at trial. Popular assumptions about custody law formed the 'shadow of the law' and these had a large but immeasurable effect on parenting decisions post-separation.[5] Sometimes, men did not apply for custody because of a belief they would not succeed in the Family Court. Often women retained custody of young children because men were more likely to be employed, or have better earning potential, while women were experienced with the children and usually willing to meet young children's needs. The historical practices of separate gender-realms in both family and society, which divided responsibilities between women and men meant that most children were more bonded to their mothers while their fathers represented an absent authority figure, often loved but frequently feared.
In the nineteenth century English and Australian case reports rarely included custody matters. Even after 1900, Australian texts on the law of husband and wife contained only discrete sections on the law of custody and they relied on English authorities.[6] The early editions included little more than definitions of the terms used in the relevant Acts.[7] The first journal article on Australian custody law was Marie Byles' 1931 note in The Australian Law Journal.[8] Byles described the complexity of the contemporary law on child custody that 'depends upon the common law rights of the father, as modified by the principles of equity and by statutory provisions relating to the rights of the mother and the welfare of the child'.[9] The ALJ published no further articles on custody aside from tangential matters until 1970.[10]
The discourse on custody reached a heightened intensity in the 1970s reflecting the debate before and after passage of the Family Law Act 1975 (Cth).[11] That Act primarily facilitated divorce in Australia and as the divorce rate increased it was apparent that women continued to 'win' custody of children in disputed cases at court. Some believed this reflected a bias of the Family Court in favour of women, although many researchers were more concerned with the effects of women retaining custody of their children, such as the 'feminisation of poverty'.[12] Another effect was the aggravation caused by men who lost custody of their children and refused to accept the decision of the court.[13] In 1980, the Senate Standing Committee reported on the effects of the 1975 Act and found judicial custody decisions in favour of wives needed better enforcement.[14] Several commentators observed that men had more difficulty than women in accepting the authority of the court and in several cases men took violent and even murderous action against the mother, the children or judges of the court.[15]
Despite the appearance of favouring mothers, many decisions appeared to be based on gendered assumptions and idealised concepts of the nuclear family. In 1989, Annette Hasche’s analysis of case law suggested that many judges favoured ‘natural’ family settings and gave men custody where they had repartnered and could offer the child a step-mother.[16] In 1991, Sandra Berns published her study of custody cases between 1976 and 1990 that showed judges used 'remarkably different constructions' about the roles of the fathers and mothers in reaching their decisions.[17] Some judges claimed there had been a shift in sex-roles in the family, whereby men contributed more towards home duties and parenting, but research by Russell (1983) and Bitman (1992) did not support that view.[18] Similarly, in 1990 Graycar and Morgan found that some judges assumed that shared-parenting was the norm and used it as justification for favouring a joint-custody outcome, like a 'script for equality'.[19]
In the 1990s, the increased attention on men and masculinity produced more sociological and populist publications than legal or historical analyses.[20] Much of the popular discourse sympathised with men for losing the status they once enjoyed as 'head of the household'. Some claimed that men had lost their 'rights' to custody because of a feminist influence in the family courts and that they were victimised again by subsequent reforms such as the 1987 child support legislation.[21]
The historical 'backlash' of anti-feminist rhetoric in Australia had begun in the previous decade with the criticism of 'single mothers' for exploiting the welfare system.[22] The continuing critique in an increasingly conservative political environment in the 1990s resulted in further reform of the law on custody. In 1995 the Commonwealth passed an Act favouring shared responsibility for children, which on the surface was a move towards equality, although it was problematic in its application of the welfare principle in terms of the child's 'right' to be cared for by both parents after separation.[23]
Legitimacy was the legal category of social approval bestowed on a child born to married parents. Illegitimacy was grounds for legal discrimination, a tool to punish unwed parents and a method for regulating individuals in Western patriarchal and patrilineal societies. De facto relationships were perceived as a threat to social order and, particularly at the time of Australia’s federation in 1900, to the well-being of the infant nation. Many believed that these informal unions produced illegitimate children that jeopardised the regulation of society and destabilised the social order.
Legitimacy was an important part of the inherited ‘Western’ kinship system and enabled the law to create rights and duties between individuals to facilitate the orderly transmission of property between generations. Parliaments and jurists felt obliged to discourage illegitimacy and often encouraged discrimination against 'fatherless' children. Consequently, in Australia as elsewhere, there is a history of legal sanctions and social stigma attaching to 'bastards' that made life even more difficult for those children born 'out of wedlock'. Michel Foucault contrasted marriage as the 'deployment of alliance' with the illicit 'deployment of sexuality', as though the latter marked the boundaries and helped to define the former.[24] Similarly, the legal discriminations against illegitimacy helped to promote legitimacy as the proper and ‘natural’ status.
In the common law of inheritance, an illegitimate child was filius nullius, 'the child of no-one', who could not inherit from her or his natural parents.[25] Blackstone claimed in 1765 that it would be 'odious, unjust, and cruel to the last degree' to discriminate against the 'innocent offspring of his parents' crimes'.[26] However, many courts in the late-eighteenth and early nineteenth centuries took a harsher view, sometimes refusing to award guardianship of an illegitimate child to either parent.[27] The courts began to recognise some custody rights for the mother of an illegitimate child in 1891, but these were typically less than the father's rights to his legitimate children.[28]
Language too reflected the prejudice experienced by people whose parents were not married. A 'fatherless' child was a bastard, then illegitimate and then ex-nuptial; while the mother was a harlot or strumpet, then a fallen woman, an unmarried mother and later a single mother.[29] There appears to be no discriminatory language for the man involved who, until the innovation of DNA testing in the mid-1980s, was only the 'putative father' because while motherhood was a matter of fact, fatherhood was a matter of opinion.[30] Whatever the origins of discriminatory language there is little doubt that gendered terms developed already loaded with unexamined significance. A common example is the verb 'to mother' which implies a duty of care while 'to father' involves merely impregnation. This kind of association influenced judges and parliaments (as much as everyone else not given to linguistic analysis and social critique) and likely contributed to presumptions about the natural order of gender difference.
During the nineteenth century, patriarchal principles empowered men to take custody of their illegitimate children; however, a woman of means could call upon a court of equity to regain custody.[30] In 1891, English courts began to resist the legal presumption in favour of men and to recognise mothers as having some greater rights than fathers in custody disputes when the parties were not married.[31] Illegitimate children represented the law's failure to enforce marriage as the basis of family life, and posed a challenge to the preservation of the system of patrilineal heritage and inheritance. In addition, the colonial governments were concerned about the rate of illegitimate births.[32] Under liberalism, the law was obliged to protect the rights of all individuals, even children born on the 'wrong side of the blanket'. However, if prevention was impossible, it was in the interests of all parties to remedy the 'error' of an illegitimate birth. Between 1899 and 1909, under English influences, liberal reformers in the Australian colonies and States passed the various Legitimation Acts.[33] Those statutes enabled the local courts to determine matters such as the custody of illegitimate children under the respective Matrimonial Causes Acts and to make other orders concerning their personal affairs.
During the twentieth century, Australian legislation reformed most of the laws that discriminated against ex-nuptial children, but some survived to the end of the 1990s, such as the rule that gave an illegitimate child the mother's domicile and a legitimate child the father's domicile.[34] As de facto relationships had no legal recognition, children born to de facto parents were formally ex-nuptial and they came under their respective state laws. Although the Commonwealth Constitution restricted the 1975 Act to 'children of a marriage', between 1986 and 1990 all the States except Western Australia referred their powers over children to the Commonwealth to enable the Family Law Act to apply uniformly to Australian children.[35] Western Australia retained discriminatory provisions in its Family Court Act 1975 that decreed ex-nuptial children were in the custody of their mothers until the Court ordered otherwise.[36] On the other hand, the law in all States presumed paternity in marriage (a 'rebuttable presumption' that a husband was the father of his wife's children) consistent with the common law's function of promoting marriage and legitimacy.[37]
Most disputes over child custody involved children born to married parents. Father-right expressed the patriarchal rule that the father would decide all things concerning his legitimate children, including who should have their possession and be responsible for their care and control. In this section, I examine the effects of father-right that persisted in the background of Australian judicial decisions on custody during most of the twentieth century despite the rules of equity, other presumptions that favoured the mother and the effects of the liberal reforms.
Over many centuries of common law, a legitimate child was held to be in the absolute power, or guardianship, of the father until the age of 21.[38] Thus father-right gave the father the power, without an order of a court, to take his child from the mother and place it in the care of a female relative or employed staff. Consequently, if a woman left her husband, she left her children: 'The father is entitled at common law to the custody of the child at its mother's breast'.[39] The origins of the rule pre-existed the early English statutes, such as the 1660 Act that gave a father power to appoint a guardian for any of his children who were under age and unmarried at the time of his death.[40] Under the principle of father-right, the common law assumed that men were the 'natural guardians' of their legitimate children and the idea of guardianship developed into several types.[41] During the nineteenth century, following the case of De Manneville in 1804, the courts gradually rationalised the concept of guardianship to mean the rights and powers that could be exercised by an adult in respect of the welfare and upbringing of a child.[42] The cases referred to 'custody' as that part of guardianship which involved the right of physical possession and control of a child.
A brief challenge to father-right in England was the 1839 statute that gave married women standing to petition for access to their children under the age of seven where the husband was guilty of misconduct, and in extreme circumstances, to petition for custody.[43] Although the provision was symbolically important, it was rarely used, since it depended on the wife having the resources to petition in equity, often a lengthy and costly procedure.[44] New South Wales adopted a similar Act in 1854, but the nature of colonial society at that time meant that even fewer women had the financial capacity, and perhaps the affront, to challenge their husbands' misconduct, even if the evidence was clear.[45]
The rules of equity worked against father-right by introducing a potentially contrary principle concerning the welfare of the child.[46] The Australian States passed Acts between 1876 and 1935 to confirm that the rules of equity prevailed over common law principles such as father-right, and to consolidate references in nineteenth-century cases that assumed the welfare of the child was the 'paramount principle'.[47] In some cases, the courts determined that the child's best interest justified awarding custody to the mother. However, if the mother was guilty of adultery, she could lose not only custody but any contact with her children at all.[48] In the publicised but unreported 1875 Sydney case of Robert Strang, for example, the husband deserted his wife and child for two years without support.[49] When he returned and found his wife living with another man, he divorced her on the grounds of adultery and the court awarded him custody of the young child. In a similar case in Sydney the following year, William Harrison was awarded custody of his five children, even though he was a pauper. The 'guilty' wife was able to support the children, but was living with another man in an adulterous relationship.[50] In such cases, the courts applied father-right principles whilst appearing to consider the welfare of the child. The courts assumed that it would rarely be in a child's interest to be placed in the care of a mother who was an adulterous woman.[51] On the other hand, when the father was guilty of adultery, many instances of 'convenience and advantage to the children' could serve to prevent them being taken from his care.[52]
The authority for father-right was the 1883 English case of Re Agar-Ellis where the court confirmed the father had the right to the possession of his legitimate children, as against the mother or any other person, no matter the age, sex or needs of the child.[53] According to Brett M.R.,
To neglect the natural jurisdiction of the father over the child until the age of twenty-one would be really to set aside the whole course and order of nature, and it seems to me it would disturb the very foundation of family life.[54]
The court referred to 'nature' as the source of the father-right principle, acknowledging contemporary values instead of older religious notions that might have grounded the law in the eighteenth century.[55] This ‘natural law’, according to the Master of the Rolls, meant that courts should defer to the father's authority over his children, and respect this principle as 'the most fundamental of all in the history of mankind'.[56]
Here was an attempt by the court to devolve its overriding responsibility for children to their fathers. The court purported to subjugate the law to a patriarchal notion that men had a 'natural' power to decide for their children and that this power was the 'very foundation of family life'. Re Agar-Ellis reinforced father-right as a principle of patrilineal inheritance among the propertied classes in England, where it survived until 1970.[57] However, in Australia, where class distinctions were less marked and inherited wealth did not necessarily equate with social power, Australian courts and parliaments applied more liberal principles concerning children. Even prior to 1900, some colonial legislatures were dissatisfied with father-right principles. As early as 1854 (and again in 1875) the New South Wales Parliament enacted laws to allow mothers to petition for the custody of their legitimate children.[58]
By 1900, most Australian courts referred to 'the welfare of the child' as the dominant principle in custody matters. However, particular courts, such as the Supreme Court of Victoria between 1907 and 1919, retained father-right considerations as criteria for the welfare of children concerned. In the 1906 case of R v Goldsmith a man placed his young child in the care of the maternal grandparents for nine years and then tried to take the child back. The grandparents refused and, although they were successful in obtaining custody against the father at first instance, on appeal the Supreme Court found in the father's favour.[59] Madden C.J. said that in the absence of the father's misconduct the welfare of a child would always be satisfied by placing the child in the father's custody.[60] On further appeal, the High Court disagreed, saying that the 'natural right' of the father was only one of many considerations.[61] Although there was no divorce in this case (because the wife had died shortly before the legal proceedings commenced) there was no 'guilty' party, but it appeared that the High Court was influenced by the man's previous conduct. Griffith C.J., with whom Barton and O'Connor J.J. agreed, criticised the husband for placing the child with the grandparents initially and for applying for custody after nine years. While Griffith C.J. referred to the 'well settled' legal principle that the right of the father to the custody of his children was 'one of the most sacred of rights', in this case he agreed with the trial judge in forming an unfavourable opinion of the father and said a resumption of the father's authority would be 'capricious and cruel' towards the child.[62]
In 1919, the Supreme Court of Victoria made another attempt to revive the father-right principle. In The King v Boyd a man had handed his baby daughter to his sister when the mother died.[63] After two years the sister, with the father's consent, handed the child to the maternal grandmother with whom the child lived for a further seven years. The father applied for custody when the child was thirteen years old, although his contact with her had been limited since he was living overseas. The father lost in the first hearing, but on appeal the three judges in the Supreme Court of Victoria were unanimous in awarding the father sole custody of the girl. The judges were impressed by the husband's social identity as a doctor, an ex-service man, 'a gentleman of unblemished reputation', and by the fact that there was no failure in his duty to the child.[64] The Supreme Court rejected the reasons of the trial judge, Hood J., who had referred to the happiness of the thirteen-year-old child as a forceful argument against the father's application.[65] The Supreme Court found there was a 'rebuttable presumption' that the child's welfare consisted of her 'right', regardless of her wishes, to be in the care of her father.
Unfortunately for the child, Boyd was not appealed to the High Court, which might have found differently. The Supreme Court of Victoria was consistent in both Goldsmith and Boyd and seemed intent on reinstating the principle of father-right by favouring men in custody appeals, especially where their behaviour was 'beyond repute'. In the eyes of the Supreme Court, a man's identity, as shown by evidence of his social image and personal conduct, was a determining consideration in the custody of children. On the other hand, in the eyes of the High Court, a man could jeopardise his 'natural' rights to the custody of his legitimate children by inappropriate behaviour. Both positions were oriented towards the father but they applied different standards of masculinity as criteria for the 'award' of custody.
In 1934, New South Wales was the last State to formally remove father-right as a principle in determining matters of child custody.[66] As in the other States, the 1934 Act adopted the principle of equity that the welfare of the child was the 'first and paramount principle' in determining custody. However, without guidelines on determining the welfare of a child, judges could only use their discretion, which was their personal view of the evidence in each case in the light of precedent decisions. In many cases, the equitable principle of the welfare of the child supported women's claim for custody because most judges accepted the broadly held view that young children should live with their mothers. However, women could only succeed in custody if they satisfied a test of moral behaviour that the courts rarely applied to men. Although the 1934 Act and similar provisions by other States gave real assistance to some women who came before the courts, symbolically they increased the significance of separate realms by supporting the assumption that women belonged in the home with their children.
In law texts, the position of the father ceased to be a discrete area for consideration in custody cases in the 1960s, and judicial use of the term 'father-right' appeared to end in Australia in the same decade.[67] However, Joske's 1952 edition of The Laws of Marriage and Divorce emphasised the principle in an apparent attempt to revive it, ironically at the beginning of the decade that exemplified separate realms. As though nothing had changed in the interim, Joske cited Goldsmith v Sands (1907) for the ‘strong presumption’ of custody in favour of the father ‘even when he is applying to take the child out of its existing custody after a lapse of years’.[68] He argued that because the father’s right to the guardianship (including custody) of his children 'has been said to be high and sacred, ... the matrimonial causes court should not take it from him unless there is not only gross misconduct on his part, but also danger to the health and morals of his children'.[69] However, in Australia in the 1950s the 'traditional' family had a demographic resurgence that located women closely with children in the home. Marital breakdown occurred relatively seldom, as we have seen, but when it did courts almost always favoured the mother in disputes over the custody of children.
The nineteenth century liberal reforms strengthened the 'maternal preference' doctrine, whereby both English and Australian courts favoured mothers in child custody cases, and appeared to contradict the principle of father-right.[70] Maternal preference was a biologically determinist idea, sometimes referred to as the 'tender-years' doctrine, which stated that the welfare of children, especially young children and more particularly young girls, was ensured by placing them in the care of the mother. It assumed that most men were neither capable nor willing to be primary caregivers for young children. The doctrine was consistent with the theory of 'separate realms' because it accepted the sex-role notions that a woman's place was in the home and a man's function was to provide for the family.
One of the liberal reforms to patriarchal English society occurred in 1839 when Talfourd's Act gave the English Court of Chancery power to grant custody to the mother of any children up to the age of seven.[71] Middle-class opinion had begun to recognise women's contribution to society through the family, especially after the publicity surrounding the case of Caroline Norton in 1854 and her subsequent article in which she argued that a mother's love was vital to the welfare of children.[72] As a result, courts became more open to favouring women against men in disputes over young children, providing the wife was not guilty of adultery.[73] The maternal preference idea, like many rules of equity, was 'progressive' since it contradicted the patriarchal principle of father-right. In any case, it had popular appeal in both English and Australian society and continued exerting influence in courtrooms for more than a hundred years.
The authority for maternal preference in common law was the 1865 English case of Austin.[74] In that case, Sir John Romilly exclaimed: 'No thing, and no person, and no combination of them, can, in my opinion, with regard to a child of tender years, supply the place of a mother'.[75] In Australia in 1954, Barry J. in the Victorian case of Harnet approved of Romilly's dictum as a 'rule of prudence and commonsense'.[76] In 1976 Glass JA pronounced in favour of women applicants for child custody generally in the New South Wales case of Epperson v Dampney.[77] Glass found that he was 'directed by authority to apply the common knowledge possessed by all citizens of the ordinary human nature of mothers'.[78]
Such chivalry not only patronised women with apparent generosity but was misleading in ignoring the underlying influences of father-right, the historical test of matrimonial guilt and other formalist notions about the welfare of the child. The double standard was clear, in that a woman would corrupt a child if she were convicted of adultery, while the question rarely arose for men.[79] Unsavoury political associations also could make a woman unsuitable for custody of her children, as it did in the case of Annie Besant in England in 1879. The Court of Appeal denied Besant custody of her child because she had advocated contraception and admitted atheism.[80] On the other hand, a man who indulged in such activities, or even if he was found guilty of adultery, had a better chance of obtaining custody of his children.
In Australian law texts, gallant male authors often pondered on the circumstances in which a court could look generously upon an unfortunate woman in a custody case. Texts did not refer to the 'guilty husband' in the sections on child custody, although there was occasional reference to the 'guilty party' and frequent references to the 'guilty wife'. Mackenzie's 1935 edition of The Practice in Divorce (New South Wales), for example, contained a separate section on the law of the 'Guilty Wife'.[81] It was apparent that a husband's guilt was less relevant than a wife's guilt in custody disputes than it was in divorce petitions. Men however, were more likely to be found 'guilty' when they displayed a lack of manly responsibility, such as the failure to provide, although it rarely affected their chances of success in a custody case.
In many cases, the courts adopted the maternal preference in considering the children’s welfare, the ‘paramount consideration’ in custody cases, and in doing so, supported the principle of separate realms that ultimately advantaged men by keeping women in the home. In the 1924 Sydney case of Emelie Polini, Justice Harvey stated that a mother prima facie should have custody of a two-year-old girl, but where the mother had assumed the father's role by becoming the breadwinner and providing for the child, she would not retain custody.[82] Eventually, as Radi suggested in 1979, that case led to the 1934 Act that focussed on the welfare principle and gave women 'equal rights' to make a claim for custody.[83] However, men retained the power to challenge their wives for custody, and they could attract the court's support in cases where the women did not display sufficient motherliness or the appropriate level of Christian moral behaviour.[84] The 1934 Act obliged the court specifically to 'have regard' to three matters, which were not expressed in the alternative: the welfare of the children, the conduct of the parties and the wishes of the parties.[85] The Act gave judges no help in prioritising these matters in cases where the evidence was contradictory, leaving them to exercise their discretion and to apply the established authorities.
After 1961, it became difficult for the courts to rely directly on matrimonial guilt as the criterion in custody cases; however men who deserted and failed to provide for their families would incite the courts' disapproval.[86] In custody cases, those views were consistent with maternal preference and the principle of separate realms which enjoyed a resurgence in Australia during the 1950s and remained popular at least until the end of the 1970s.[87] The Matrimonial Causes Act 1959 (Cth), which was the first attempt by the Commonwealth Government to guide the State judges on custody matters, copied the reformed State Acts to the extent that it adopted the welfare of the child as the paramount consideration and thereby appeared to give equal entitlements to the father and the mother.[88] However, the 1959 Act implied maternal preference for custody in the provisions that obliged husbands, and not wives, to pay maintenance.[89] If the dispute involved the custody of a young child, the court could rely on the man's apparent irresponsibility to justify awarding custody to the wife. In the meantime, however, Australian law texts appeared to contradict the 1959 Act by encouraging the effects of fault over the maternal preference. In 1968 Toose, for example, emphasised 'conventional morality' as a 'dictate' in custody cases that could not be ignored.[90]
The effect of maternal preference in Australia during the 1960s was not only to assume that women belonged in the home according to the beliefs and principles of separate realms, but to deny suitable fathers the opportunity to have closer interactions with their children. The judicial thinking that appeared to advantage women in custody disputes simultaneously disadvantaged women in 'public' areas such as obtaining employment, equal wages with men and consideration for positions of authority. Maternal preference became emblematic of the separate realms that advantaged men, fettered women, and fed the rise of feminist thinking and the political shift to the left in the early 1970s.
Whitlam's Labor government took office in December 1972, and many of its political initiatives for the Commonwealth were feminist-inspired and directly contravened the assumptions of separate realms.[91] Beginning in 1975, the States also disrupted the courts' rationale for maternal preference in child custody cases by introducing the 'equality Acts'.[92] In the same year, the Federal Parliament passed Lionel Murphy's Family Law Act 1975 (Cth) that formally abolished all gendered assumptions in custody cases, including the principles of tender years and maternal preference.[93] The paramount principle in children's cases under the 1975 Act was the welfare of the child. Although this principle was not new, it received far more attention in the new Family Court of Australia and the Family Court of Western Australia and caused a protracted, contentious and sometimes violent debate in the Australian community.
The 'paramount principle' of the welfare of the child was a liberal notion with antecedents in the nineteenth century. Until 1975 in Australia, the principle remained subject to the other assumptions about father-right and maternal preference.[94] Most of the reforms from the late-nineteenth century specified that the child's best interest was the paramount principle in determining custody although the statutes, like the case law, followed the English precedents.[95] All Australian courts prior to 1975 would claim their decisions on custody were consistent with the welfare of a child. However, there is some evidence to suggest the welfare principle was at times a convenient tool for the courts to proclaim their views on broader issues.[96]
In the first half of the century the few custody cases that were reported suggested that the priority of the State courts, even in child custody cases, was to punish the wicked and reward the virtuous. It was not until 1924, for example, that an adulterous wife was allowed access to her children although custody was still unlikely.[97] As late as 1933 in Re an Infant, a New South Wales court held that the welfare of a child should not be used to hamper a court's discretion in determining custody between a guilty and an innocent party.[98]
Clearly the 'welfare principle' was a fluid notion that depended on historical factors. Under the Matrimonial Causes Acts, judges exercised unfettered discretion to order custody; however, they risked an appeal if they strayed too far from the contemporary perspective of a child's welfare. Gradually, over decades of shifting emphases, the rhetoric around the welfare principle helped courts to accept that it was appropriate to decide each child-related case on its merits. One example of this process was the increase in the number of exceptions to the rule that prevented 'guilty' mothers obtaining custody (a rule that rarely applied to men).[99] However, conservative judges continued to retard development of the law by expressing fears for the effect on marriage and society if 'lax' principles crept in and changed the way justice was done in deciding matters of custody.[10] The judges exercised broad discretion under almost identical provisions in the various State Acts, and little if any change followed the introduction of the Matrimonial Causes Act 1959 (Cth).[100] The welfare principle remained 'paramount', although there continued to be enormous discretion and diversity of opinion in how the principle should operate.[101]
Similarly, the Family Law Act 1975 (Cth) did not make a significant change to the law of custody, since the Senate Standing Committee advising Parliament on the reform had recommended only minor alterations.[102] However, the Act did bring matters concerning 'legitimate' children under a new Family Court of Australia (except in Western Australia which had its own new court) and careful drafting avoided the gendered presumptions that had persisted under the 1959 Act.[103] In addition, the starting point under the 1975 Act was that each parent was a guardian of the children and that both had joint custody.[104] Upon an application to vary those rights, the Act expressly directed the court to regard the welfare of the child as the paramount consideration, and then listed a number of other considerations that the court should take.[105] These included 'the nature of the relationship of the child with each of the parents ...[and] the effect on the child of any separation from either parent'.[106] As a result of those sections, many children remained with the 'primary care giver' after the parents separated, and in most cases in the 1970s and 1980s this was the mother. While the reasoning shifted as a result of the compulsory considerations imposed by the 1975 Act, there was no apparent change in outcomes of most custody trials and negotiated agreements based on legal principles.
In the 1976 case of Epperson v Dampney, heard under the 1959 Act, the Supreme Court of New South Wales made a fruitless attempt to reinstate the maternal preference. In an appeal decision, the Supreme Court ordered a father to hand over to the mother two young children who had lived with him for two years following the trial judge's decision in his favour.[107] According to Glass JA, with whom Street CJ. agreed,
I am directed by authority to apply the common knowledge possessed by all citizens of
the ordinary human nature of mothers. ... That knowledge includes an understanding of the strong natural bond which exists between mother and child. ...the mother's attachment is biologically determined by deep genetic forces ...[108]
Glass JA claimed that he preferred 'common knowledge' about the respective role of parents and the welfare of children, rather than the opinion of experts such as psychiatrists and psychologists.[109] In the politicised environment of the 1970s, the State Supreme Courts were about to lose their matrimonial jurisdiction to the Family Court of Australia and the Family Court of Western Australia. It is apparent that the judges seized the opportunity represented by Epperson v Dampney to express disapproval of the 1975 Act and the values it espoused, at the expense of the husband's case in that matter and the welfare of the children.
In response, the Family Court of Australia contradicted the Supreme Court of New South Wales and issued a clear rebuke. In the 1976 case of Raby the Full Court said: 'We are of the opinion that the suggested ‘preferred’ role of the mother is not a principle, a presumption, a preference, or even a norm. It is a factor to be taken into consideration where relevant'.[110] Subsequently, the High Court of Australia agreed in the 1979 case of Grownow where Mason and Wilson JJ, with whom Aickin J. agreed, confirmed that an historical shift had occurred in the family structure in Australia.[111] The judges identified a 'radical change in the division of responsibilities between parents', whereby 'the father gives more of his time to the household and the family [which] reduces the strength of the factual presumption' in favour of mothers as custodial parents.[112] In a separate judgment, Murphy J. referred to 'the movement of women into the industrial workforce' and the change in property rights towards equality between spouses as having the consequence of 'greatly weakening' the principle of maternal preference.[113]
The alleged economic equality in marriage allowed judges to ignore other differences between fathers and mothers in deciding custody cases. Raby and Grownow were consistent with the 'gender-neutral' philosophy principles of the 1975 Act, and those enacted in the other equality and anti-discrimination Acts passed by the States at that time.[114] These and other judgments in the 1970s assumed that a 'level playing field' had developed between women and men in Australian families and society generally.[115] However, despite the rhetoric of equality, as Graycar observed in 1994, seldom if ever would judges reward women for assuming the male role in obtaining paid work, while in many cases judges appreciated the efforts of a man who had 'tailored his life so as to act as mother and father'.[116]
In any case, the contemporary research on sex roles found that men's behaviour in families was fundamentally unchanged and did not support the judicial assumption of gender equality. A number of surveys during the 1980s showed that there was almost no increase in men's contribution to home duties or parenting duties although married women had increased their involvement in the workforce.[117] Publicly-funded childcare and anti-discrimination laws enabled more women to undertake paid employment, but had no significant effect on men's contributions to home duties.[118] In the few cases where men did take more responsibility for home duties, the arrangements were often unstable and many reverted to 'traditional' patterns over time.[119] One factor was that men continued to earn considerably more than women in the workforce, despite equal pay legislation.[120] However, another study found that some men returned to the workplace simply because they 'had had enough of being at home.'[121] Overall, research in the 1990s confirmed that there had been little change from the 1950s in men's contributions to home duties and parenting.[122]
In the meantime, other research in the 1980s found that the maternal preference remained a dominant assumption in community attitudes towards child custody.[123] A study in 1985 of 195 cases in the Melbourne registry found that in 72 per cent of cases the mothers were the sole applicants for custody, a finding that prompted Nygh J. to claim that 'the mother preference is alive and well in the general community'.[124] Some family court judges may have felt justified in applying a maternal preference in custody decisions in the belief that it was consistent with community views. However, since the 1975 Act rejected all assumptions except for the welfare principle, and because the Full Court in Raby and the High Court in Grownow had confirmed that custody considerations were to be 'gender neutral', judges had to be careful how they articulated a decision that might suggest they were influenced by the maternal preference.
In any case, maternal preference was a deeply gendered notion that did not necessarily benefit women, but rather a notional mother figure as part of broad assumptions and practices that worked to advantage men. While some women were successful in keeping custody of their children, women in general were considered less suitable for more public responsibilities. Separate research by Annette Hasche and Sandra Berns considering the welfare principle in case law up to 1991, concluded that some judges applied a double standard that tended to disqualify working mothers but reward working men.[125] Hasche examined several decisions during the 1980s, and found that men who had repartnered and were able to offer the children a step-mother often succeeded in custody trials against mothers who had obtained paid employment.[126] Most reported decisions appeared to enforce a principle that children should be raised by women in the home. In 1991, Berns published similar findings of custody cases between 1976 and 1990 and found that despite the gender-neutral law, judges made 'remarkably different constructions' about the roles of the fathers and mothers in reaching their decisions.[127] Simply put, those constructions involved men being responsible for providing for the family through paid employment, and women being responsible for raising children in the home.
As the masculinist discourse developed in the early 1990s, some trial judges attempted to revive the principle of separate realms by suggesting that a man should be a worker in the public domain. In 1994, the trial judge in Sheridan refused a father's application for custody of two pre-school children, saying the father would present a better role model for them if he obtained employment instead of engaging in their full-time care.[128] Although the Full Court disagreed on appeal, a year later a similar decision arose with the case of McMillan.[129] In that case, the trial judge rejected a man's application for the sole custody of his young son for several reasons including that the father proposed to remain on welfare during the child's formative years instead of taking the employment available to him.
Although both decisions were overturned, the appeal courts displayed sympathy for the trial judges' efforts to apply the law based on the welfare of the child while remaining consistent with community attitudes. The Full Court in Sheridan did not need to examine the trial judge's comments about the suitability of the husband as a role model because it sent the matter back for a retrial on another point of law.[130] In McMillan the Full Court attempted to achieve a difficult balance: 'To the extent that the trial Judge may have assumed ... that a father in full-time paid employment presents a better role-model to his children than one engaged in their full-time care we would disagree'. The Full Court asserted that a trial 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 [original emphasis].'[131] However, the judges continued, the Family Court 'above all other Courts, has the obligation and responsibility to reflect community standards and opinions subject only to the Family Law Act 1975 (Cth) itself'.[132] The Full Court did not explain how they arrived at one set of community standards and opinions, nor mention the historical duty of setting standards for the community to follow.[133]
Even though the 1975 Act imposed guidelines for applying the welfare principle in custody matters, judges of the Family Court of Australia exercised the most unstructured discretion of any system in the Western world.[134] That helps to explain why, during the 1990s, judges showed considerable diversity of opinion on the importance of gender roles in parenting decisions. Although Australian research had linked egalitarian beliefs in the community with higher educational attainment, Family Court decisions showed that judges were as capable of gender bias as other community members.[135] The Full Court's statement in McMillan confirmed that the Family Court had an obligation to follow 'general community opinion'. However, in the early 1990s, other interpretations of 'community opinion' impacted politically, and led to amendments of the Act that reduced judicial discretion and for the last time in the twentieth century changed the meaning of the welfare principle.
Since 1975, reactionary men's groups had lobbied against the Family Law Act and used the popular press to argue that the Family Court was biased against men.[136] Part of their complaints involved accusations that men succeeded in as little as two per cent of custody matters.[137] In 1979, the Court commissioned research to test the allegations of bias and in the main study, Horwill looked at a sample of 430 cases.[138] In that sample, wives retained custody in 78 per cent of cases, but mostly as a result of agreements between the parents; defended cases produced equal or closer to equal outcomes.[139] Until the mid-1980s most studies in Australia and overseas confirmed that the intervention of a judge in a custody dispute significantly increased the chances of the father retaining custody, contrary to the critiques.[140] However, vocal men's groups continued to complain that in family law 'women always win', a perception that increased following the Child Support (Assessment) Act 1989 (Cth), which made it more difficult for men to avoid their financial obligations to provide for the children in the custody of the mother.
In the 1990s, Australian family law responded to the concerns of the reactionary men's groups.[141] In the first instance, in the cases of McMillan (1994) and Sheridan (1995), it seemed that the judges denied the fathers’ custody on the separate realms principle that men belonged in the workplace and parenting was a duty for mothers. On appeal in both cases, the Full Court recognised the error in the judges' reasoning and disallowed both decisions. However, the rejection of gender bias benefited men in those cases, ironically after decades of protests over legal bias against women.[142] Without similar corrections of gender bias that might advantage women, the court risked encouraging the resurgent men's movement and potentially fuelled the debate. On the surface at least, the coincidence of those two decisions offered succour to disaffected men, although the Full Court purported to be 'gender neutral' and responding to each case on its merits.
It was the legislators however, in the form of the (Liberal, conservative) Commonwealth Government, that most fully acquiesced to the demands of the reactionary men's groups in the 1990s.[143] The Family Law Amendment Act 1995 (Cth) was a response to men's complaints that had intensified following introduction of the Child Support Scheme in the late 1980s.[144] The 1995 Act followed several of the initiatives contained in the English Children Act (1989) although there had been no review of the effects of that Act or analysis of the cultural and political implications of Australia replicating untested English statutes in the 1990s.[145] The reform contained some valuable amendments such as changes to the language that treated children like property (custody to 'residence' and access to 'contact') and imposed 'responsibilities' on parents instead of legal rights. However, the 1995 Act also introduced shared parenting after separation, contrary to the recommendations of the Joint Select Committee in 1992, instead of keeping the children with the primary caregiver.[146]
The rhetoric surrounding the 1995 Act concentrated on the notion of parental responsibility instead of rights. It was the child who had rights, and children were to be cared for by both parents, regardless of who had cared for them prior to separation.[147] The political intention of the Act was to return the appearance of the law on children to equality, or parity between the natural parents, and to satisfy the complaints of the father's groups that the law favoured women. The legislators seemed unconcerned about the evidence that parents had different capacities, experience and willingness to care for their children. Legal scholar Helen Rhoades noted the irony in that the reform imposed 'equality with a vengeance' and that while women continued to perform the larger share of caregiving work in families, father's groups did not demand reforms that would give them greater responsibilities for child care before separation.[148] However, it was possible, as the Full Court observed, that the Commonwealth proposed the 1995 Act to be 'long term, educative and normative', in other words, to directly and permanently change 'the attitudes of society generally'.[149] In this, it was possibly successful, but not in the way that the Government intended.
One effect of the 1995 Act was to diminish the significance of men's domestic violence by naming it as 'family violence', a relatively genderless expression, instead of ‘domestic violence’ which had the common meaning of violence by men against women in the home.[150] Another effect of the reform was to assert that a man's violence against the mother in the home was not necessarily a matter that affected the welfare of children. The reform specifically enabled child contact orders to override any inconsistent restraining order, called a 'family violence order', between the parents so that a man who was restrained from contacting or attending the address of his former partner because of his domestic violence, was allowed to do so if it was required by a Family Court order for child contact.[151] Secondly, the 1995 Act emphasised 'private ordering' instead of judicial determination of disputes, making mediation a 'primary dispute resolution' rather than 'alternative dispute resolution', and setting the ground for later reduction of legal aid funding.[152] Analysts and practitioners had acknowledged mediation as a valuable method of dispute resolution in some cases, providing there was little power imbalance or history of abuse. However, the attempt to prioritise mediation assumed that there was an equality of bargaining power between the husband and the wife in most cases. Mediation assisted those men who had established a controlling influence over their wives during the marriage and avoided court hearings that could test the merit of the parents' differing positions as they affected the welfare of children. There were substantial criticisms of the reform, especially from within the legal profession, for imposing mediation in an environment of reducing legal aid assistance, since it gave men a potential advantage in family law disputes.[15]
A third effect of the 1995 Act was to increase the relative importance of fatherhood and create a perception of justice by imposing formal equality between the parents through the notion of 'shared responsibility'. Just as the 1975 Act was a victory for feminist-inspired reform, the 1995 Act was a minor clawback and acquiesced to conservative men's groups in Australia.[153] It seemed that many disaffected men saw shared responsibility for children as the next best thing to 'full' custody although no one, perhaps not even the legislators, comprehended how both parents were to remain responsible for their children after separation.[154] There was popular support for the intention to favour the child in custody (residence) disputes, rather than either parent, and AIFS research showed 'solid assent' in the community for emphasising the 'core responsibilities' of parents.[155] However, Kathleen Funder's research showed that there was less public support for the notion of sharing responsibilities for children after divorce or separation, although 'somewhat stronger' assent to this came from divorced men.[156]
After 1995, there was a significant increase in the orders for interim contact (access) between non-resident fathers and children, and a decline in the courts' refusal rate of interim contact applications.[157] Similarly, the number of 'shared residence' (joint custody) decisions also increased after the 1995 Act, reflecting the newly perceived right of children to be cared for by both parents after separation, and the philosophy of 'equality' between the parents.[158] In the 1995 case of B v B, the Full Court described the 1995 Act as representing 'a major re-statement of the law relating to children who come within the ambit of the Family Law Act and over time it may have a significant impact upon the approach to those matters'.[159] However, from an historical perspective, the reform was not only contrary to earlier legal authorities but against contemporary social and psychological research, which found that a child's welfare was best served by family courts providing stability and not ordering a change in the status quo or shared residence until all matters affecting the child's welfare could be tested at trial.[160]
Perhaps ironically, many fathers in residence disputes over children were further assisted by the Commonwealth's reduction of legal aid assistance, beginning in 1997, that coincided with the effects of the 1995 Act. In family law, legal aid usually helped women more than men due to the effects of means testing.[161] Legal aid reductions denied many women a court hearing and forced them into mediation (conferencing) where there was less chance of being heard if the relationship had involved controlling behaviour such as intimidation or abuse. Further, without legal aid most women could not appeal the increasing number of interim contact or shared residence decisions after 1995, and those arrangements often continued in the long term 'by consent' since few women had the financial resources for a trial.
It was incongruous that the concluding reform in the century of family law returned to men some of the relative privilege they had enjoyed in the nineteenth century under father-right prior to the liberal reforms. There was enormous contention during the 1990s in Australia over men's and women's roles in families as fathers and mothers and it was inevitable that a political solution would respond to the loudest complaints, rather than reflect judicial experience or research. The welfare principle had moved once more to favour the immediate representation of the interests of the father, despite the rhetoric of equality and the appearance of protective measures against domestic violence.
At the beginning of the twentieth century, fathers could exercise patriarchal authority over their legitimate children before and after divorce. Challenges to this right were rare although the father-right principle continued to influence the court's determination of child custody disputes. Many men did not seek custody because they lacked the time, interest or the skills to provide daily care, especially if the children were young. The courts had for some time recognised the value of mothers keeping children after divorce and this 'maternal preference' gradually replaced father-right as a guiding principle during the first half of the twentieth century. Maternal preference also supported the notion of separate gender-realms which had been a feature of patriarchy and, although it favoured women in specific custody cases, it helped to preserve men's advantages generally and their relative power in the economic and public domain. The notion of fault complicated the effects of both principles of father-right and maternal preference, because conviction of a matrimonial offence could have precluded either parent obtaining custody of a child until the divorce reforms in 1975.
Under the Family Law Act 1975 (Cth), when there was a dispute over child custody, the courts applied the welfare principle at the interim stage by attempting to shield the children from the effects of divorce and allowing them to remain with their primary caregiver who was typically the mother. If the dispute over custody continued to a trial judge for final orders, the results almost equally favoured the father or the mother. Despite this, some men accused the court of showing a bias in favour of women.
In the 1980s, several disaffected fathers' groups protested against the Family Law Act 1975, the Family Court and lobbied government through the popular media as though they represented Australian men generally. The Commonwealth persisted with valuable reforms and passed the Child Support (Assessment) Act 1989 (Cth) despite increased awareness of domestic violence against women and the violent attacks by some men on the Family Court. Eventually, the Commonwealth appeared to respond to electoral advice, and passed the Family Law Reform Act 1995 (Cth).
The 1995 Act imposed new assumptions about a child's best interest and made gratuitous changes to tested legal principles. The Act denied the enormous diversity that had developed in Australian families since the 1970s. It emphasised 'equal' responsibility of both biological parents, regardless of who was more suited, had the skills or had performed the bulk of parenting duties prior to separation. Shared parenting of children forced separated parents together, ignoring the prevalence of domestic violence and the significant Australian research and case law cautioning against joint-parenting arrangements.
The law has always presented the child's welfare as the paramount principle. The changes in the 1990s demonstrate that law is a product not only of parliamentary processes and peer-reviewed research as it should be, but of political and judicial perceptions of popular demand and community opinion. Conservative governments incline to the past, and confuse their security of tenure with security of society, basing both on familiar structures of family. In Australia the apparent favouring of fathers through shared parenting orders in the Family Court may not in the long run impact much on the diversifying nature of the family. It may however surprisingly, increase court time and resources spent in attempts to enforce or avoid shared parenting based on opposed understandings of the welfare of the child.
[∗] BA (Macquarie), BJuris, LLB, MPhil, PhD (UWA) : Senior Lecturer, School of Law, University of Newcastle Legal Centre.
[1] There are 1716 submissions listed by the House of Representatives Standing Committee website <http://snipurl.com/cras> Every Picture Tells a Story: Report on Child Custody Arrangements in the Event of Family Breakdown (2003) xii. See <http://snipurl.com/cr9j> .
[2] Family Court Judge John Fogarty was quoted in The Age on 27 June 2003 saying the presumption in favour of shared parenting was not workable except where parents were on very good terms after divorce, leading to many letters published in part at <http://snipurl.com/crbm> Catherine Carauna, ‘Legislating for Shared Parenting: The ‘Joint Custody’ Inquiry Makes Recommendations for Change’ Family Matters, 67 (2004) 16-19; Bren Neale, Jennifer Flowerdew and Carol Smart ‘Drifting Towards Shared Residence’ Australian Family Lawyer (2004) 17 (2) 12-16.
[3] See the Family Law Reform Act 1995 (Cth) and the Family Law Amendment Act 2000 (Cth) and analyses provided by Helen Rhoades, Reg Graycar and Margaret Harrison, The Family Law Reform Act 1995: The First Three Years University of Sydney and Family Court of Australia, (2000) <http://snipurl.com/crb3> and The Family Law Reform Act 1995: Can changing legislation change legal culture, legal practice and expectations? Interim Report, Family Court of Australia, April 1999 <http://snipurl.com/crb5> also 'Posing as Reform: The Case of the Family Law Reform Act', Australian Journal of Family Law (2000) 14 (2) 142-59.
[4] William Blackstone stated the common law position in his Commentaries on the Laws of England (1753, 1765, 1768, 1770) (18th Ed, 1829) (1978) 441; Constance Backhouse’s analysis of Australian custody cases between 1900 and 1950 found little support for the notion of maternal preference, ‘The Mother Factor in Australian Child Custody Law, 1900 – 1950’ (2000) 6 Australian Journal of Legal History 51-111.
[5] Robert H Mnookin and Lewis Kornhauser, 'Bargaining in the Shadow of the Law: The Case of Divorce' (1979) 88 Yale Law Journal 950; Patterns of Parenting after Separation: A Report to the Minister for Justice and Consumer Affairs prepared by the Family Law Council (1992) 10; Carol Smart, 'Negotiating Parenthood: Bargaining in the Shadow of a New Law', in Christine R Barker, Elizabeth A Kirk and Monica Sah (eds), Gender Perceptions and the Law (1998) 1-24.
[6] Early English law texts included little if any reference to the law of custody, suggesting the principle of father-right needed little explanation and that, since exceptions to that principle were based in equity they had little place in texts on common law; even a principle text of 1933 gave less than four pages to 'Custody, &c. of infants' in the section on 'Separation Agreements': S N Grant-Bailey, Lush on the Law of Husband and Wife (1884, 1896, 1910) (1933) 480-3.
[7] The 1935 fifth edition of Mackenzie's Practice in Divorce for example, contained the law on custody of children in less than six pages and this grew to only nine pages by the sixth edition in 1952; Frank B Treatt, E H St. John and D L Mahoney, Mackenzie's Practice in Divorce (1893) (1952).
[8] Marie B. Byles, 'The Custody and Guardianship of Infants' ALJ (1931) 53-6.
[9] Ibid at 53; things became even more complicated if the parents were before the divorce courts because a finding that one or other party was guilty of a matrimonial offence could preclude them from an award of custody.
[10] In 1970 Ronald Sackville and Annemaree Lanteri critiqued the law's view of 'illegitimate' children in 'The Disabilities of Illegitimate Children in Australia: A Preliminary Analysis' Parts I and II (1970) 44 ALJ January 30, 5-13, and February 27, 51-64.
[11] See the analyses in Judy Mackinolty and Heather Radi (eds), In Pursuit of Justice: Australian Women and the Law 1788-1979 (1979) and in Elizabeth Windschuttle (ed), Women, Class and History: Feminist Perspectives on Australia 1788-1978 (1980).
[12] A Burbridge, Poverty in Australia: new data on the incomes of Australian families and individuals, Institute of Family Studies (1984); B Cass, 'The Changing Face of Poverty in Australia: 1972-1982' (1985) Australian Feminist Studies vol 1 67; R F Henderson, A Harcourt, and R J A Harper, People in Poverty: A Melbourne Survey (1970); Ruth Weston, 'Changes in Household Income Circumstances', in Peter McDonald (ed), Settling Up: Property and Income Distribution Divorce in Australia (1986) 100-30, and 'Money Isn't Everything', in McDonald (ed), Settling Up (1986) 279-307 at 307.
[13] Arguably there was an increase in domestic violence in the 1980s in Australia evidenced by the steady increase in women’s refuges funded by governments, 'Women's Budget Statement 1990-91', AGPS, Canberra (1990) 110; see also Judith Healy, After the Refuge: A Study of Battered Wives in Adelaide (1984); also McDonald found an inverse relationship between the degree of litigation over custody and the regularity of men's maintenance payments for women; Settling Up, above n 12, 270.
[14] Australian Parliament, Joint Select Committee on Family Law, Family Law in Australia, AGPS, Canberra (1980) 44.
[15] Patricia Abrahams, 'Violence Against the Family Court: Its Roots in Domestic Violence' (1986) 67 Australian Journal of Family Law 67-77; Térèse Taylor, 'Australian Terrorism: Traditions of Violence and the Family Court Bombings' (1992) 8 Australian Journal of Law and Society 1.
[16] Annette Hasche, 'Sex Discrimination in Child Custody Determinations' (1989) 3 Australian Journal of Family Law 218-35.
[17] Sandra S Berns, 'Living Under the Shadow of Rousseau: The Role of Gender Ideologies in Custody and Access Decisions' [1991] UTasLawRw 8; (1991) 10 University of Tasmania Law Review 233-255.
[18] The strongest statement on the alleged contemporary increase in men's contributions was the High Court of Australia in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; Graeme Russell, The Changing Role of Fathers (1983) 187; Michael Bittman, Juggling Time: How Australian Families Use Time, A Report on the Secondary Analysis of the 1987 Pilot Survey of Time Use, prepared for the Office of the Status of Women, Department of Prime Minister and Cabinet, May 1991 (1992); see further discussion below at nn.119-123; Janice Drakich, 'In Search of the Better Parent: The Social Construction of Ideologies of Fatherhood' (1989) 3 Canadian Journal of Women and the Law 69-87.
[19] Regina Graycar and Jenny Morgan, 'Losing Children: Motherhood on Trial' in The Hidden Gender of Law (1990) 243-69; see also Jocelynne Scutt in Women and the Law: Commentary and Materials (1990) 277-89; the recognition of joint custody as a 'script for equality' comes from G. Lehmann, 'The Case for Joint Custody', Quadrant (1983) 27 (6) 60-6.
[20] Many texts on Australian men published during the 1990s included guides for men as fathers in the difficult social and family environments that developed since the 1970s; for example, Steve Biddulph, Manhood: A Book about Setting Men Free (1994); Men Talk: Fourteen Australian men talk about their lives, loves and feelings after two decades of feminism (1996); Tom Morton, Altered Mates: The Man Question (1997); John Webb, Junk Male (1998); Michael Green, Fathers After Divorce: Building a New Life and Becoming a Successful Separated Parent (1998); Don Edgar, Men, Mateship, Marriage: Exploring Macho Myths and the Way Forward (1997); Katherine Biber, Tom Sear and Dave Trudinger (eds), Playing the Man: New Approaches to Masculinity (1999); 'Despite scant attention in the past, fathering has become an area attracting considerable media attention as well as the interest of social scientists', Naomi Rosh White, 'About Fathers: Masculinity and the Social Construction of Fatherhood' (1994) 30 (2) Australian and New Zealand Journal of Sociology 119-31.
[21] The Child Support (Assessment) Act 1989 (Cth) made it difficult for non-custodial parents (mostly men) to avoid their maintenance obligations and contributed to many men's opposition to the Family Court system, to the anti-feminist sentiment and to the rise of the 'men's movement' in Australia.
[22] Regina Graycar, 'Equal Rights versus Fathers' Rights: The Custody Debate in Australia', C Smart and S Sevenhuijsen (eds), Child Custody and the Politics of Gender (1989) 158-89.
[23] As discussed below, the 1995 Act made no concessions for the benefit of placing a child with the primary caregiver; Kathleen Funder analysed community attitudes in 1996 and concluded that 'the assumption that all parents have continuing responsibility for children is qualified in the minds of Australians', 'Family Law Reforms and Attitudes to Parental Responsibility: The Question of the Match' (Paper presented at The 3 R's: Relationships, Rights, Responsibilities; The 7th National Family Law Conference, Canberra, 13-18 October 1996).
[24] Michel Foucault (trans Robert Hurley) The History of Sexuality, Vol. 1: An Introduction (first published 1978, 1981) 106-7.
[25] T Littleton, Treatise on Tenures (1481) Book 2 ch. 11 sec. 188; William Blackstone, Commentaries on the Laws of England (1753, 1765, 1768, 1770, 18th ed, 1829), Garland (1978) 447; Windeyer J claimed that although a bastard 'was not of heritable blood', he (or she) could acquire property and leave it to his (or her) heirs; Attorney-General (Victoria) v Commonwealth [1962] HCA 37; (1962) 107 CLR 529, (the 'Marriage Act Case) at 584.
[26] Blackstone, Commentaries (1978) 447.
[27] R v Soper (1793) 5 Term Rep 278; [1793] EngR 1473; 101 ER 156 at 156-157; R v Felton and Wenman (1758) in F Const, Laws Relating to the Poor (4th ed, 1800) 494; Re Lloyd [1841] EngR 1116; (1841) 133 ER 1259, per Maule J. at 1260.
[28] Barnardo and McHugh [1891] 1 KB 317; Re Carroll (an infant) [1931] 1 KB 317 at 356.
[29] Anthony Dickey claimed that the term bastard derives from the French 'bast' meaning a pack saddle, often used as a pillow by muleteers, and a bastard was a 'pack-saddle child', born from a casual relationship on the road; Family Law (1997) 280; Swain and Howe noted that the changing terminology did not reflect matching changes in social stigma or legal sanction, Shurlee Swain and Renate Howe, Single Mothers and their Children: Disposal, Punishment and Survival, (1995) 2.
[30] As per the adage expressed by the Latin maxim 'mater semper certa est, pater incertus est'; G v H [1993] FamCA 39; (1993) 113 FLR 440 at 441.
[30] Equity held that custody of an illegitimate child went first to the mother, then to the father and finally to the mother's relations, R v Nash [1883] UKLawRpKQB 12; [1845] 10 QBD 454, 456, and Re Ullee [1885] 53 LT 711.
[31] Lord Watson in Clarke v Carfin Coal Co. [1891] UKLawRpAC 39; [1891] AC 412 at 420; Barnardo v McHugh [1891] UKLawRpAC 42; [1891] AC 388 at 396-98; this change appeared to be a shift from legal to equitable influence in the courts and reflected the move from formalist to liberal philosophy in politics and social values at the time.
[32] In Australia from about 1860 to 1900, poverty led to the death rate of illegitimate infants at about three times the rate for legitimate infants: New South Wales Royal Commission on the Decline of the Birth-Rate (1904) Vol. 1 Report paras 131-48; also Neville Hicks, ‘This Sin and Scandal’ Australia’s Population Debate 1891-1911 (1978) 28.
[33] Legitimation Act 1889 (SA), 1899 (Qld), 1902 (NSW), 1905 (Tas), 1909 (WA), Registration of Births, Deaths and Marriages 1903 (Vic).
[34] Domicile refers to the 'permanent home' of a person and contributes to determining that person's civil status; E I Sykes and M C Pryles, Australian Private International Law (3rd ed, 1991) 353; in matters other than domicile, Tasmania was the first in 1974 and Western Australia the last State in 1997 to recognise the formal equality of illegitimate children with legitimate children: Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic); Family Relationships Act 1975 (SA); Status of Children Act 1978 (Qld); Status of Children Act 1978 (NT); Children (Equality of Status) Act 1976 (NSW); Birth (Equality of Status) Act 1988 (ACT); Family Court Act 1997 (WA) s 66 (2) (a).
[35] Commonwealth Powers (Family Law-Children) Acts 1986 (NSW and Vic), 1990 (Qld), and Commonwealth Powers (Family Law) Acts 1986 (SA), 1987 (Tas).
[36] Family Court Act 1975 (WA) s 35.
[37] Filiation (the determination of parentage) was determined by the maxim 'pater est quem nuptiae demonstrant', which meant that the husband is (deemed to be) the father of the child of his wife: In the Marriage of J. and P [1985] FamCA 24; (1985) 80 FLR 126 at 130.
[38] Blackstone distinguished between guardianship by nature, for nurture, in socage, by statute, by local custom, and guardianship in chivalry: Commentaries (1978) vol 1 449-50, vol 2 67; R v de Manneville [1804] EngR 233; (1804) 5 East 221; 105 ER 1054.
[39] Cartledge v Cartledge (1862) 31 LJ. Mat 85.
[40] Tenures Abolition Act 12 Car II, c 24 (1660); the relevant parts of this Act became Australian law upon colonisation, however they were amended variously by the States (following the Custody of Infants Act 1886 (Imp)) to allow a mother, as the surviving parent, to be a guardian and to object to a guardian appointed under the father's will, for example: Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW).
[41] Blackstone stated that the ‘empire of the father continues even after his death’, Commentaries (1978) vol 1, 441; he distinguished between at least six kinds of guardianship in the 18th century, but most of those formalities had fallen away or were abolished by the mid-nineteenth century; ibid 449-50, vol 2 (1766) 67, and (18th ed, 1829), vol 1 453.
[42] For most of the nineteenth century the common law authority for father-right was the 1804 case of R v de Manneville [1804] EngR 233; (1804) 5 East 221; 105 ER 1054; Neale v Colquhourn [1944] SAStRp 25; [1944] SASR 119 at 129.
[43] Talfourd's Act of 1839 (2 and 3 Vict. c. 54).
[44] One reported use of Talfourd's Act was Shillito v Collett (1860) 8 W. R. 683, 696; 24 J. P. 660; the provision was abolished by the Custody of Infants Act 1873 (Imp), 36 and 37 Vict. C.12 which increased the relevant age of the child from seven to sixteen years; Charles Dickens satirised the tyranny of delay and costs perpetrated by the court of Chancery in Bleak House, Chapman and Hall, London, 1907.
[45] An Act to amend the Law relating to the Custody of Infants (18 Vic. No. 1), 1854 which was repealed by an Act of the same name in 1875 (39 Vic. No. 16); Radi referred to cases that involved the mother seeking custody against a third party after the father's death; 'Whose Child?', 1979 at 122; Golder dispelled the myth that women in late-nineteenth century New South Wales (and possibly other colonies) did not have to pay their own divorce costs; Divorce in 19th Century New South Wales (1985) 193.
[46] Chetwynd v Chetwynd (1865) LR 1 P and D 39; R v Gyngall [1893] UKLawRpKQB 95; [1893] 2 QB 232; (1894) 2 QB 232.
[47] Australian legislation included Judicature Act 1876 (Qld) s 5 (10); Supreme Court Act 1928 (Vic) s 62; Supreme Court Civil Procedure Act (Tas) 1932 s 11 (8); Supreme Court Act (WA) 1935 s 25 (11).
[48] Seddon v Seddon and Doyle (1862) 2 Sw and Tr 640, and 164 ER 1146 at 1147; Mozley Stark v Mozley Stark and Hitchins [1909] UKLawRpPro 42; [1910] P 190 at 193-194.
[49] Sydney Morning Herald, 8 June, 26 November, 6 December 1875.
[50] Sydney Morning Herald, 23 May 1876.
[51] Although it seemed a matter of course that an adulterous wife would not get custody, the courts were careful not to establish the rule so firmly as to fetter their discretion; Stark v Stark [1909] UKLawRpPro 42; [1910] P 190; 27 Digest 459; B v B ante; Bolton v Bolton [1928] NZGazLawRp 53; [1928] NZLR 473; Roth v Roth (1929) 46 WN (NSW) 105.
[52] Re Goldsworthy [1876] UKLawRpKQB 102; (1878) 2 QBD 75; in 1952 Joske informed aspiring Australian jurists that the 'natural right of the father is sufficient to cast the onus of proof on those opposing it, even when he is applying to take the child out of its existing custody after a lapse of years, and it raises a presumption, albeit a rebuttable one, in favour of the father'; Percy Ernest Joske, The Laws of Marriage and Divorce in Australia and New Zealand (1925, 1942, 1952) 443-4.
[53] Re Agar-Ellis [1883] UKLawRpCh 194; (1883) 24 Ch D 317, especially Brett MR at pp.327-28.
[54] Ibid 336.
[55] Relying on religious presumptions would still have favoured the father, however to appear to rely on 'modern' ideas of science and naturalism helped to insulate the basis of such decisions that favoured father-right against calls for liberal reform; both English and Australian Courts continued to use religious and morality references interchangeably until the mid-twentieth century; references to nature seemed to increase from the late-nineteenth century, suggesting the rise of scientism over religion as a judicial influence, especially following the controversy sparked by publication by Charles Darwin in 1872; The Origin of Species (first published 1872, 6th ed, 1909).
[56] Re Agar-Ellis [1883] UKLawRpCh 194; (1883) 24 Ch D 317 at 337-8.
[57] See Hewer v Bryant (1970) 1 QB 357 at 369 and 372.
[58] An Act to amend the Law relating to the Custody of Infants (18 Vic. No. 1) (1854); An Act to amend the Law as to Custody of Infants (39 Vic. No. 16) (1875); a man could defeat his wife's petition for divorce or separation on the grounds of desertion, and also defeat her case for custody of the children, by sending her a small sum of money on a regular basis; Radi, 'Whose Child?', at 125.
[59] R. v Goldsmith (1906) 29 ALT 40.
[60] Reasons of Madden C.J. in R. v Goldsmith (1906) 29 ALT 40.
[61] Goldsmith v Sands [1907] HCA 47; (1907) 4 CLR 1648 per Griffiths C.J. at 1654.
[62] Goldsmith v Sands [1907] HCA 47; (1907) 4 CLR 1648 per Griffiths C J at 1652 and 1655; Griffiths C J referred to In re Newton [1896] UKLawRpCh 10; (1896) 1 Ch 740, at 749.
[63] The King v Boyd [1919] ArgusLawRp 75; (1919) VLR 538.
[64] Ibid per Mann J at 546.
[65] Ibid per Hood J at 543.
[66] S 2(a)(i) Guardianship of Infants Act 1934 (NSW).
[67] References to the position of the father as a distinct area in the contemporary law of custody last appeared in Percy Ernest Joske's 1952 third edition of The Laws of Marriage and Divorce in Australia and New Zealand [1925] 443.
[68] Percy Ernest Joske, The Laws of Marriage and Divorce in Australia and New Zealand (3rd ed, 1952) 444.
[69] Ibid 449.
[70] Carol Smart described these assumptions in English cases as 'the ideology of motherhood'; The Ties that Bind: Law, Marriage and the Reproduction of Patriarchal Relations (1984) 124.
[71] Custody of Infants (Talfourd's Act) 1839 (2 and 3 Vict. c. 54).
[72] Caroline Norton, Caroline Norton's Defence (1854, 1982).
[73] After 1857 the Divorce Court found custody in favour of the wife on several occasions; Clout v Clout (1861) 2 Sw. and Tr. 391; Seddon v Seddon and Doyle (1862) 2 Sw and Tr 640; 164 ER 1146; a woman's adultery, but never a man's, automatically precluded her consideration for custody of her children until the end of the nineteenth century; Re A. and B. [1897] 1 Ch.786; Mozley Stark v Mozley Stark and Hitchins [1909] UKLawRpPro 42; [1910] P 190.
[74] Austin v Austin [1864] EngR 156; (1865) 55 ER 634.
[75] Ibid at 636-637.
[76] Harnett v Harnett [1954] VicLawRp 33; (1954) VLR 533, at 536.
[77] Epperson v Dampney [1904] VicLawRp 58; (1976) 10 ALR 227; FLC 90-061; this case was determined under the Matrimonial Causes Act 1959 (Cth) and so was subject to the older considerations that applied before the 1975 reforms.
[78] Glass JA continued saying that 'the mother's attachment is biologically determined by deep genetic forces which can never apply' to men; ibid at 75, 302; see below at nn 107-109.
[79] One explanation of the origins of father-right appeared in a case that was exception to the double standard favouring men; in Wellesley v Duke of Beaufort [1827] EngR 268; (1827) 2 Russ. 1, 30; [1829] ER 236, after the mother's death, the father applied for custody against other relatives; the Lord Chancellor refused the father's application because he was still residing with the adulteress.
[80] In Annie Besant's case (Re Besant [1879] UKLawRpCh 147; (1879) 11 Ch.D, 508) three Law Lords affirmed the earlier decision of the Master of the Rolls, Jessell in the Chancery Division, to remove the infant daughter from the mother and ordered sole custody for the father; the Law Lords were unanimous in finding that because the mother advocated atheism and birth control measures her behaviour was 'so abhorrent to the feelings of the great majority of decent Englishmen and Englishwomen, and would be regarded by them with such disgust, not as matters of opinion, but as violations of morality, decency, and womanly propriety, that the future of a girl brought up in association with such propaganda would be incalculably prejudiced', at 521.
[81] W.K.S. MacKenzie, The Practice in Divorce (New South Wales) (5th ed, 1935) 191-2.
[82] Unreported judgment of Mr Justice Harvey 8 April 1924, Department of Attorney-General and Justice, Special Bundles, Guardianship of Infants 1914-46, Archives Authority of New South Wales, Sydney.
[83] Radi, 'Whose Child?' at 129'; it is also likely that another influence on the New South Wales Parliament was that most other States had already reformed their laws to adopt the equitable principle of the welfare of the child.
[84] Guardianship of Infants Act 1934 (NSW), s 2 (a) (i).
[85] Under s 2 (a) (i) the court could order custody to either parent '...having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well as the mother as of the father'.
[86] Concerning the rejection of matrimonial guilt as relevant to custody: P v P [1964] VicRp 55; (1964) 5 FLR 452, per Barry J; Travincek v Travincek [1966] VicRp 47; (1966) 7 FLR 440 at 444; concerning the 'natural' preference for the mother: Kades v Kades (1961) 35 ALJR 251 at 254; Chignola v Chignola (1974) 9 SASR 479 at 487-488; the Matrimonial Causes Act 1959 (Cth) did not become effective until 1 February 1961.
[87] According to a broad survey of married women across Australia in 1977 by Lado Ruzicka and John Caldwell, four fifths of respondents believed that before any career a woman could aspire to, her most important role in life was to become a mother; and 71% of respondents regarded childlessness as a personal disaster; The End of Demographic Transition in Australia (1977) 340-2.
[88] Matrimonial Causes Act 1959 (Cth), s 85(1)(a).
[89] Ibid ss 8 (3) (i) and (6), and 55 (3).
[90] Paul Toose, Ray Watson and David Benjafield, Australian Divorce Law and Practice (1968) 494; earlier texts that exhorted courts to accept the relevance of matrimonial guilt in custody decisions included W.K.S. MacKenzie, The Practice in Divorce (New South Wales) (5th ed, 1935) 191-92; Percy Ernest Joske, The Laws of Marriage and Divorce in Australia and New Zealand [1925] (3rd ed, 1952) 448-9.
[91] Responding to feminist demands, the first acts of Gough Whitlam's federal Labor Government included intervening in the Equal Pay Case, abolishing sales tax on the contraceptive pill, allocating substantial funds to preschools and child care, introducing maternity leave for federal public servants and, in April 1973, appointing a women's adviser to the Prime Minister; Chris Ronalds in 'To Right a Few Wrongs: Legislation against sex discrimination', in Judy Mackinolty and Heather Radi (eds), In Pursuit of Justice: Australian Women and the Law 1788-1979 (1979) 190-201 at 192.
[92] Most, but not all, of the 'discrimination Acts' were passed by Labor Governments: the Sex Discrimination Act 1975 (SA); Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1977 (Vic); Equal Opportunity Act 1984 (WA); Sex Discrimination Act 1984 (Cth); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1991 (Qld); Anti-Discrimination Act 1992 (NT); Sex Discrimination Act 1994 (Tas); at the Federal level, according to Lionel Bowen, Australia was influential at the 34th session of the United Nations General Assembly in 1979 in ensuring passage of the final draft of the resolution that resulted in the Committee on the Elimination of Discrimination Against Women (CEDAW); House of Representatives, Debates, Vol. 135, 7 March 1984, 676; in October 2000 the conservative Howard Government refused to support the resolution.
[93] The Family Law Act 1975 (Cth) s 65 states the best interests of the child to be the paramount consideration; although this was similar to s 85 of the Matrimonial Causes Act, the 1975 reform contained no other terms that inferred parenting expectations for the mother and maintenance obligations for the father as were inferred in the provisions of the 1959 Act.
[94] In R. v Gyngall (1894) 2 QB 232 at 248, Kay L J held that the term 'welfare' here 'must be read in its largest possible sense'; that case was applied in Australia by Goldsmith v Sands [1907] HCA 47; (1907) 4 CLR 1648 at 1653; for England, Nigel Lowe identified different forms of the welfare principle in 'The Legal Status of Fathers: Past and Present' in Lorna McKee and Margaret O'Brien (eds), The Father Figure (1982).
[95] Judicature Act 1876 (Qld), s 5(10); Supreme Court Act 1928 (Vic) s 62; Guardianship of Infants Act 1934 (NSW) s 2; Supreme Court Act 1935 (WA) s 25; Supreme Court Civil Procedure Act 1932 (Tas), s 11(8).
[96] An English example of the convenient deployment of the welfare principle was B v B [1924] P 176; 27 Digest 536, 5811; Jon Elster criticised the welfare principle for being indeterminate, unfair and not cost efficient in Solomonic Judgments (1989) 134-48.
[97] B v B [1924] P. 176 (CA), 27 Digest 536, 5811, at 182.
[98] Re an Infant (1933) 50 WN (NSW) 85; this case was prior to the 1934 Act in that State, and together with the Polini case, referred to above n 78 (see Radi, above n 83), may have contributed to the reform; the precedent case for the Australian States was the English case W v W [1926] P. 111 (see 114) which held that custody is not usually given to a guilty spouse, unless for good reasons shown.
[99] New considerations included the happiness of the child (Wilkinson v Wilkinson [1945] SAStRp 3; [1944] SASR 239), the status quo (Storie v Storie [1950] ALR 470); proper discipline and parental control (Rogers v Rogers (1947) 64 WN (NSW) 207); adequate provisions for the child's maintenance (Flood v Flood [1948] 2 All ER 712; Digest Supp.); the child's parentage, which may have required blood tests (R v Jenkins: Ex parte Morrison, [1949] VicLawRp 11; [1949] VLR 277); the wishes of a child aged 16 or more (Ex parte Dubal [1920] 37 WN (NSW) 233; 1 Austn Digest 48).
[10]1 Some cases emphasised the parental rights of the 'unimpeachable parent'; Hedges v Hedges [1944] SAStRp 49; [1944] SASR 266; McKinley v McKinley [1946] VicLawRp 66; [1947] VLR 149.
[100] Section 85 of the Matrimonial Causes Act 1959 (Cth) stated that 'In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage (a) the court shall regard the interests of the children as the paramount consideration; and (b) subject to the last preceding paragraph, the court may make such order in respect of those matters as it thinks proper'; otherwise, the 1959 Act gave the courts full discretion to determine custody subject to precedent decisions.
[101] H.A. Finlay, 'First or Paramount? The Interest of the Child in Matrimonial proceedings', (1968) 42 ALJ. 96; in Clarkson v Clarkson (1972) 19 FLR 112 at 116, for example, the court asserted the best interests of the child came before a solicitor's duty to the client.
[102] Note that Section 64 (1) Family Law Act 1975 (Cth) specified the considerations for the court; concerning children in Western Australia, see Section 39A Family Court Act 1975 (WA); note that in WA, until the 1975 State Act was repealed by the Family Court Act 1997 (WA), ex-nuptial children were in the sole custody and guardianship of the mother until a court ordered otherwise.
[103] The 1975 Act reflected gender neutral drafting in the sections to do with children with minimal references that might distinguish the sex of the parent, although it left open the power of the court to consider 'any other fact or circumstance' which the court felt might affect the welfare of the child; Family Law Act 1975 (Cth), s 64 (1) (bb) (vi); also Family Court Act 1975 (WA), s 39A (1) (vi).
[104] Family Law Act 1975 (Cth) s 61(1).
[105] Ibid s 64 (1) (a).
[106] Ibid s 64 (1) (bb) (i) and (ii); Family Court Act 1975 (WA), s 39A (1) (b) (i) and (ii).
[107] Epperson v Dampney [1904] VicLawRp 58; (1976) 10 ALR 227.
[108] Ibid at 241 per Glass JA; also at 231 per Street CJ; Glass JA referred to Transport Publishing Co Pty Ltd v Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111 at 119 where the High Court of Australia gave obiter dicta to the effect of rejecting expert evidence of 'ordinary human nature', and so in custody cases, according to Glass JA, 'common knowledge' is to be preferred to the opinion of experts such as psychiatrists as to the respective role of parents and the welfare of children.
[109] Street CJ. agreed with Glass JA by saying that the views of child psychiatrists and child psychologists 'will fall short of elucidating all of the matters that a judge must take into account in deciding a custody dispute'; Epperson v Dampney [1904] VicLawRp 58; (1976) 10 ALR 227 at 229.
[110] In the Marriage of Raby [1976] FamCA 89; (1976) 27 FLR 412 at 427; also 'an important factor': In the Marriage of Hobbs and Ludlow (formerly Hobbs) (1976) 29 FLR 101 at 106.
[111] Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513.
[112] Ibid per. Mason and Wilson JJ. at 527.
[113] Ibid per. Murphy J at 531; Murphy J considered the entry of women into the industrial workforce to be possibly 'the greatest phenomenon of the mid-twentieth century in Australia and similar countries'.
[114] Sex Discrimination Act of 1975; Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 1977 (Vic), the Equal Opportunity Act 1984 (WA); Sex Discrimination Act 1984 (Cth);
[115] In Mathieson v Mathieson (1977) FLC 90-230, for example, Fogarty J said at 76,218 that the evidence showed 'an illustration of role reversals in our community. Here the mother does in fact work full-time ... The husband on the other hand has tailored his life so as to act as mother and father to the three older children ...'; similar apparent changes in social values were identified in other Western societies as well; Richard Collier ‘Waiting Till Father Gets Home’: The Reconstruction of Fatherhood in Family Law', in Social & Legal Studies (1995) vol 4 5-30 at 20.
[116] Regina Graycar, 'Gendered Assumptions in Family Law Decision Making' (1994) 22 Federal Law Review 278-99; the quotation is from Mathieson [1977] FLC 90-230. Graycar and Morgan also observed how the judicial assumptions failed in the special cases of 'minority women', such as lesbians and Aboriginal women; Regina Graycar and Jenny Morgan, The Hidden Gender of Law (1990) Ch.10, 'Losing Children: Motherhood on Trial', 243-269; see also Jocelynne Scutt’s edited critique of the Australian law on custody in Women and the Law: Commentary and Materials (1990) 277-89; the recognition of joint custody as a 'script for equality' comes from G. Lehmann, 'The Case for Joint Custody' 1983 27 (6) Quadrant 60-6.
[117] Graeme Russell found in 1983 that few genuine 'shared care-giving' families existed in Australia and where men did provide assistance in parenting often it was not sustained over time; in fact, men were 'highly participant' in only one or two per cent of families; The Changing Role of Fathers (1983) 78 and 187; J Kelley, C Bean and M Evans, National Social Science Survey, 1989-90: Family and Changing Sex Roles (1993) 9.
[118] K Hargreaves, for example, found that the Commonwealth Government funded 2,171 childcare places in 1970 rising (under the Labour Government) to 20,000 in 1977; Women at Work (1982) 77.
[119] J Baxter, D Gibson and M Lynch-Bliss, Double Take: The Links Between Paid and Unpaid Work (1990) 20-4; similarly in Canada Janice Drakich found that men had not increased their contribution to home duties or parenting tasks; 'In Search of the Better Parent: The Social Construction of Ideologies of Fatherhood' (1989) 2 Canadian Journal of Women and the Law 69-87.
[120] ABS, Average Weekly Earnings, Cat No 6302, May 1986.
[121] Russell, Changing Role (1983) 187.
[122] Bittman found that men had increased their involvement in pleasurable activities in the home, such as playing with children, but not the more irksome tasks which they continued to leave for their women partners; he suggested that men constituted a 'net drain on family resources of unpaid labour time'; Juggling time: How Australian Families Use Time, A Report on the Secondary Analysis of the 1987 Pilot Survey of Time Use, prepared for the Office of the Status of Women, Department of Prime Minister and Cabinet, May 1991 (1992) 6-7; Alison Morehead, Mairi Steele, Michael Alexander, Kerry Stephen, Linton Duffin, Changes at Work: The 1995 Australian Workplace Industrial Relations Survey (1997); between 1992 and 1997 Australian men aged between 35 and 44 increased the time spent on domestic chores by twenty minutes and on childcare by nine minutes per day; those changes were limited to men in that age bracket and remained significantly less than the amount of time spent by women on both duties, 'Daddy Time', The Weekend Australian, 19-20 June 1999; J. Lindsay, 'Diversity but not Equality: Domestic Labour in Cohabiting Relationships' (1999) 34 Australian Journal of Social Issues 267 at 281.
[123] P J McDonald (ed.), Settling Up: Property and Income Distribution on Divorce in Australia (1986) 269.
[124] Nygh J., 'Sexual Discrimination and the Family Court' [1985] UNSWLawJl 5; (1985) 8 UNSW Law Journal 62 at 67-8.
[125] Hasche Annette, 'Sex Discrimination in Child Custody Determinations' (1989) 3 Australian Journal of Family Law 218-235; Sandra S. Berns, 'Living Under the Shadow of Rousseau: The Role of Gender Ideologies in Custody and Access Decisions' [1991] UTasLawRw 8; (1991) 10 University of Tasmania Law Review 233-255.
[126] Mathieson (1977) FLC 90-230, per Fogarty J. at 76,219 and 76,221; Ward, Family Court of Australia, 6 August 1987, (unreported, overturned on appeal); Schenck [1981] FamCA 26; (1981) FLC 91-023; Archibald, Family Court of Australia, 8 November 1983, (unreported), per. Renaud J; Goudge [1984] FamCA 6; (1984) FLC 91-534; Williams, Family Court of Australia, 15 January 1988, (unreported), confirmed on appeal at Williams [1988] FamCA 53; (1988) FLC 91-980 at 77,082.
[127] Ryan [1976] FamCA 94; (1976) FLC 90-144 at 75,703; Issom [1976] FamCA 18; (1977) FLC 90-238 at 76,287; Cartwright (1977) FLC 90-267 at pp.76,428-76,429 and 76,432, per obiter dictum by Asche SJ; DKI v OBI [1979] FamCA 34; (1979) FLC 90-661 at 78,529 and 78,538; Berns identified judicial allusions in these cases to ideas about gender differences that were emphasised by Jean Jacques Rousseau in Emile, trans B. Foxley (1911) 5-6; also The Emile of Jean Jacques Rousseau, selections trans W. Boyd (ed) (1956); in N v H, the Full Court claimed the welfare of the child made it necessary to deny a male-to-female transsexual access to her three-year old child, even though none of the various experts on either side had supported that decision; In the Marriage of N v H (1982) FLC 91-267.
[128] Sheridan v Sheridan (1994) FLC 92-517.
[129] McMillan RS v Jackson SM (1995) FLC 92-610.
[130] Sheridan v Sheridan (1994) FLC 92-517 at 81,335.
[131] McMillan RS v Jackson SM (1995) FLC 92-610 at 82,084.
[132] Ibid.
[133] According to the Hon Michael Kirby, Justice of the High Court of Australia, judges who are sometimes called 'judicial activists' must 'accept that appellation with fortitude', 'Judicial Activism' (1997) 27 Western Australian Law Review 1-20 at 19; see also Sandra Berns, To Speak as a Judge: Difference, Voice and Power (1999).
[134] Family Law Act 1975 (Cth), s 68F; according to Parker et al the FLA by itself conferred more discretion on courts than has been experienced by any other family law system; Australian Family Law in Context: Commentary and Materials (1994) 3; also Reg Graycar 'Gendered Assumptions in Family Law Decision Making' (1994) 22 Federal Law Review 278-299; however, the different approaches to matrimonial cases suggest that some nineteenth-century judges, such as Windeyer J and Simpson J, exercised substantial discretion despite their duty to follow precedent decisions; see Golder, Divorce (1985) 272.
[135] M Bittman and F Lovejoy found the connections between education and egalitarian beliefs in 'Domestic Power: Negotiating an Unequal Division of Labour Within a Framework of Equality' (1993) 29 (3) Australian and New Zealand Journal of Sociology 302-321; see also, Neal Devins, 'The Judicial Role in Equality Decisionmaking', in Neal Devins and Davison M Douglas (eds), Redefining Equality (1998) 218-32.
[136] 'Divorce is still a long, painful operation', Sydney Morning Herald, 20 December 1977; 'Family Court not to blame: Attorney General', Sydney Morning Herald, 4 April 1978, 11; Victoria Green and Robin Gurr examined the role of the media in facilitating the complaints of the men's groups in 'The Media and the Family Court of Australia: A Marriage of Convenience' (1987) 12 Legal Service Bulletin 243-6; according to Leonie Star, writing about the post-1975 era: 'There can be no doubt that the media fed a selected build-up of resentment against the court. Much publicity was given to 'men's' movements that were formed in this period. Made up mainly of disaffected men', Counsel of Perfection: The Family Court of Australia (1996) 139; D Hickie, 'Violence over Children: Family Court Crisis', National Times (1981) November 29 - December 5, 1 and 22-3.
[137] Australian Law Reform Commission, Transcript of Proceedings, Public Hearings on the Law of Contempt, 1986, Mr Ward, Men's Confraternity, p.378; Family Law Reform Party and Equality for Fathers' Submission to Australian Law Reform Commission Reference on Matrimonial Property, Report No 39, AGPS, Canberra, 1987; The Australian Family Law Action Group, Submission to the Joint Select Committee into the Family Law Act 1975: Aspects of its Operation and Interpretation, 1992, AGPS, Canberra, 1992, Mr Williams, Lone Fathers Association of Australia, 10.
[138] F M Horwill, 'The Outcome of Custody Cases in the Family Court of Australia' (1979) 17 (2) Conciliation Courts Review 31-40.
[139] Ibid; in a subsequent study Edgar et al found similar results but in any case, he found that only 2% of contested hearings in the Melbourne registry during 1981 involved custody, Don Edgar, P Good, Margaret Harrison, A Prolisko and S Freidin, 'Information Collection under the Family Law Act: Melbourne Family Court Hearings, 1981', Institute of Family Studies, Occasional Paper No. 5 (1983).
[140] In Australia, following Horwill's 1979 paper: F Horwill and S Bordow, 'The Outcome of Defended Custody Cases in the Family Court of Australia, Sydney', Family Court of Australia, Research Report No. 4 (1983), which looked at 100 cases evenly selected from Melbourne and Sydney registries and determined that women retained custody in 79% of all cases but in only 54% of contested cases, compared with 31% of contested cases that favoured men, at 45; in the United States: P M Doyle and W A Caron, 'Contested Custody Intervention: An Empirical Assessment' in D H L Olson, M Cleveland, P Doyle, M F Rockcastle, B Robinson, R Reimer, J Minton, W Caron, S Cohen (eds), Child Custody: Literature Review and Alternative Approaches (1979); L J Weitzman and R B Dixon, 'Child Custody Awards: Legal Standards and Empirical Patterns for Child Custody, Support and Visitation after Divorce' (1979) 12 University of California, Davis Law Review 473-521; in Britain: J Eekelaar and E Clive, with K Clarke and S Raikes, Custody after Divorce: The Disposition of Custody in Divorce Cases in Great Britain (1977); S Maidment, 'Child Custody: What Chance for Fathers?', National Council for One Parent Families (1981).
[141] According to Renata Alexander, 'the Family Law Act and the Family Court have embraced a false image of fathers as equals in terms of childcare and household work; fathering and fatherhood have been unquestioningly adopted as men's inviolable, natural rights', 'Family Law in the Future' (1999) 24 (3) Alterative Law Journal112-116 at 114; an earlier and troubling incident of government acquiescence to men's violence and threats was the alleged response of the then Attorney-General Gareth Evans to the 1984 bombing of the Family Court of Australia; T Taylor claimed that following the bombings Evans wrote to the Lone Father's Association and invited their suggestions for changes in the law: T Taylor, 'Australian Terrorism: Traditions of Violence and the Family Court Bombings' (1992) 8 Australian Journal of Law and Society 1.
[142] Lee Vickers, ‘There's No Gender Bias Here’: Gender Equality and Family Court Custody Decisions - The Legacy of McMillan v Jackson', Sister in Law (1996) vol 1 33-51; C. Smart, 'Power and the Politics of Child Custody', C Smart and S Sevenhuijsen (eds), Child Custody and the Politics of Gender (1989) 9.
[143] Australian reactionary men's groups included the 'Army of Men', ‘Abolish Child Support/Family Court Party’, DADS (Dads Against Discrimination), 'The Family Law Reform Association NSW Inc.', 'Parents Without Rights' and the 'Lone Father's Association'; DAWMA (Defence Against Women Marriage and Alimony); FORCE (Fathers Organisation for Revolutionary Custody Entitlement); and in Western Australia, the 'Men's Meeting Place' and ‘Men’s Confraternity’; Reg Graycar, 'Equal Rights versus Fathers' Rights: The Custody Debate in Australia', C Smart and S Sevenhuijsen (eds), Child Custody and the Politics of Gender (1989); Miranda Kaye and Julia Tolmie, ‘Fathers’ Rights Groups in Australia and their Engagement with Issues in Family Law’ (1998) 12 Australian Journal of Family Law 19-68.
[144] The most persuasive factors in the Commonwealth government's decision to pass the 1995 Act appeared to be responses of men on commercial 'talk-back' radio, letters to the editor in tabloid newspapers and thirdly, the submissions from individual men and men's groups to the Joint Select Committee, The Family Law Act 1975: Aspects of its Operation and Interpretation (1992) 105; in addition, the 1992 Joint Select Committee received 285 complaints about the Child Support Scheme even though child support was not part of its terms of reference; The Family Law Act 1975: Aspects of its Operation and Interpretation (1992) at 363 and 365; C. Staniforth claimed that the 1995 Reform Act was largely a response to criticism from non-custodial fathers about the effects of family court decisions; 'The Evolution of the Family Law Reform Bill: Some Unresolved Issues' (1995) 2 Canberra Law Review 145.
[145] In particular, the English Children Act 1989 encouraged joint parenting after divorce; the Australian version imposed continuing joint obligations on parents after separation; the Australian Act also followed the English abolition of the word 'custody' which, it was felt, connoted inappropriate meanings of the 'possession' of children and continued the discourse of wining and losing; both Acts also encouraged mediation as a primary dispute resolution as an attempt to 'de-litigate' family law which was a source of intense social division, as well as legal aid costs; B Hoggett, 'The Children Bill: The Aim', Family Law (1989) vol 19 217-21; 'Joint Parenting Schemes: The English Experiment' (1994) 6 (1) Journal of Child Law 8-12.
[146] Joint Select Committee, The Family Law Act 1975: Aspects of its Operation and Interpretation (1992) 111; specifically at 106 the Joint Select Committee cautioned against 'the potential damage to children' that might result in cases where shared parenting was imposed on unwilling parents.
[147] The 1995 Act replaced references to the parents' 'rights' in the former Family Law Act (Cth) 1975 section 63 concerning custody and guardianship of children, with the new section 60B which concentrated on the parents' duties and responsibilities; s 60B (2) states the principle underlying the objects of the Act concerning children that 'children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together'.
[148] Helen Rhoades, 'Posing as Reform: The Case of the Family Law Reform Act' (2000) 14 (2) Australian Journal of Family Law 142-159 at 156.
[149] B v B: Family Law Reform Act 1995 (1997) FLC 92-755, para. 9.2
[150] After the Family Law Reform Act 1995, Section 60D(1) of the Family Law Act 1995 defined family violence as 'conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family to fear for, or to be apprehensive about, his or her personal well being or safety'
[151] Family Law Act 1975 (Cth) s 68S; while the reform empowered a magistrate to suspend or vary a contact order to avoid any inconsistency in certain situations (Family Law Act 1975 (Cth) s 68T) at least in Western Australia anecdotal experiences until 2000 showed that Petty Sessions magistrates consistently refused to exercise that power and instead would suggest the party affected apply to the Family Court of Western Australia.
[152] Re 'private' dispute resolution: Margaret Harrison, 'Resolution of disputes in Family Law – Should Courts be Confined to Litigation?', (1997) 46 Family Matters 43.
[15]5 Hon. Justice Michael Kirby, 'Family Law Reform: Words of Caution' (1996) 11 (3) Australian Family Lawyer 4-9; Renata Alexander, 'New Mantras in Family Law' (1996) 6 Alternative Law Journal; 'Mediation is not always the answer', The Age, 16 April 1998; Stephen Thackray, 'Impact of the Family Law Reform Act 1995', NAPCAN Seminar in Child Protection Week (1997).
[153] According to men's solicitors surveyed in 1997, their clients considered that after the 1995 Act men's rights concerning children had improved due simply to a belief that 'shared custody' was more likely; Margaret Harrison and Regina Graycar, 'The Family Law Reform Act: Metamorphosis or more of the same?' (1997) 11 (3) Australian Journal of Family Law 327-42 at 337.
[154] Shared residence (joint custody) was an objective of several men's groups: ALRC, Transcript of Proceedings, Public Hearings on the Law of Contempt, 1986, Mr Williams, p.11; according to Lisa Young, 'a driving force in effecting these reforms has been the recent and persistent voice of fathers' rights groups'; 'Parenting Disputes under the Family Law Act 1975: the New Regime' (1996) 1 Sister in Law 93 at 101; another study found significant diversity in the policies and approaches of the different men's groups: Kaye Miranda and Julia Tolmie, ‘Fathers’ Rights Groups in Australia and their Engagement with Issues in Family Law’ (1998) 12 AJFL 19-68 at 27; B Arendt acknowledged that men's groups had influenced new family law policies in 'When School's Out for Fathers', Sydney Morning Herald, 4 May 1996.
[155] 'Core responsibilities' included teaching right from wrong, education, love, and protection from 'exposure to violence' Kathleen Funder, 'The Australian Family Law Reform Act 1995 and Public Attitudes to Parental Responsibility' (1998) 12 International Journal of Law, Policy and the Family 47-61 at 55.
[156] Funder, 'The Australian Family Law Reform Act 1995' (1998) 58; as mentioned above n148, the Joint Select Committee specifically recommended against introducing a regime of shared custody.
[157] While the results of final trials for contact did not change compared with prior to the 1995 reform, (Helen Rhoades, Regina Graycar and Margaret Harrison, The Family Law Reform Act 1995: Can changing legislation change legal culture, legal practice and expectations? (1999)) only 10% (or less) of applications went to a final trial, and it was likely that many women acquiesced and agreed to 'consent orders' to continue the contact (access) regime established by the interim orders instead of proceeding to trial for residence (custody).
[158] After 1995, magistrates and judges considering child-related matters became less willing to take seriously or to act upon women's allegations of domestic violence or violence towards or abuse of the children; according to Helen Rhoades, one judge commented 'No one is prepared to say ‘no contact’ any more'; 'Posing as Reform: The Case of the Family Law Reform Act' (2000) 14 Australian Journal of Family Law 142-59 at 145; also Rhoades, Graycar and Harrison found that several judges explained the new understandings under the 1995 Act as 'equality'; The Family Law Reform Act 1995: The first three years; Final Report November 2000, <http://tinyurl.com/wwzd9> .
[159] B v B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213.
[160] 'Child experts' considered shared residence to be contrary to the welfare of the child in In the Marriage of Cilento [1980] FamCA 36; (1980) 6 Fam LR 35 at 37; Australian courts in the early 1990s confirmed earlier psychological research findings that joint custody of children was only appropriate if the parties' approaches to parenting were compatible and there was a relationship of 'mutual trust, co-operation and good communications' between the parents; Hafliger and Hafliger-Knoll (1990) 13 Fam LR 786 (H and H-K [1990] FLC 92-128); Forck and Thomas [1993] FamCA 18; (1993) 16 Fam LR 516; and Padgen (1991) 14 Fam LR 743; in Padgen the judge noted that the Family Court had 'not generally embraced the concept of shared parenting in cases where there is any degree of conflict between the parties', [1991] FLC 92-231 at 78,596; see also In the Marriage of Cowling [1998] FamCA 19; (1998) FLC 92-801 at 85,006; according to Regina Graycar, where responsibilities for children were shared after separation, the father typically had greater power because of his advantages as the economically and physically stronger parent, raising the likelihood of reviving the disagreements that led to the separation; 'Equal Rights versus Fathers' Rights: The Custody Debate in Australia', C. Smart and S. Sevenhuijsen (eds), Child Custody and the Politics of Gender (1989) 175; Sandra S Berns critiqued the reasoning of joint custody decisions in 'Living Under the Shadow of Rousseau: The Role of Gender Ideologies in Custody and Access Decisions' [1991] UTasLawRw 8; (1991) 10 University of Tasmania Law Review 233-55 at 249-54.
[161] John Dewar, Jeff Giddings and Stephen Parker concluded the changes to legal aid funding, especially the reduced funding by the Commonwealth since June 1997, produced 'the disintegration of a legal aid system traditionally conceived as the guarantor of level-playing fields', 'The Impact of Legal Aid Changes on Family Law Practice' (1999) 13 Australian Journal of Family Law 33-51, at 50.
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