FAMILY HISTORIES

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Notes

1. There is much, of course, that could be said about the nature, impact and achievements of this period, especially the role of ‘femocrats’ and the interrelationship of their public political experience and the grassroots, and theoretical challenges made by other women during this period. This is not, however, the primary focus of this essay, but see generally Hester Eisenstein (1996).

2. For the historical explanation of the nature of the Australian state until the advent of neoliberal economic theory about the market see, for example, Marian Sawer (2003, 166–67).

3. Similar expressions of doubt about feminism's successes have also been canvassed, albeit in distinct ways, by Susan Maushart (2005), and Anne Manne (2005).

4. A number of generalist texts explain and historicise the complex nature, role and impact of feminist ideas and policy initiatives through the last decades of the twentieth century, in relation to the state in Australia; see, for example, Marilyn Lake (1999b), and Hester Eisenstein (1996).

5. I will return to the ideas of resentment and ressentiment in the Section, Equality, Resentment and the State. For an excellent summary of the cultural, economic and political dimensions in Australia of ‘traditional family values’ and the associated rise of fathers’ rights as a policy discourse, see Marion Maddox (2005), particularly Chapter 4 ‘Mothers and Fathers’. For an overview of the collective nature of ideas about feminism and family law, the Men's Rights website offers a good example of the Australian perspective (www.mensrights.com.au). For a comparative US perspective see Cynthia R. Daniels (1998).

6. See, for example, Margaret Thornton (1991, 453–74).

7. I will return to this discussion in the Section, Equality, Resentment and the State.

8. Commonwealth, Parliamentary Debates, House of Representatives, 28 November 1974, 4322 (Gough Whitlam, Prime Minister).

9. See, for example, Suzanne Franzway, Dianne Court and R.W. Connell (1989); and Sophie Watson (1990).

10. Both Carole Pateman (1988) and Joan W. Scott (1988) deal with these issues.

11. See, for example, Jocelynne Scutt and Di Graham (1984).

12. See, for example, the summary in Marilyn Lake (1999a); or Hilary Golder and Diane Kirkby (1995).

13. The background to the inclusion of this power is discussed in Russell v. Russell; Farrelly v. Farrelly (1976) 134 CLR 495, at 546–47.

14. For a discussion of the policy and case law relating to the referral of powers see Patrick Parkinson and Juliet Behrens (2004).

15. Although there have been some changes in this regard, the most notable being amendments introduced by the Family Law Reform Act 1995. Section 43 contains general principles to be applied, including ‘the need to ensure safety from family violence’. Section 68F(2) requires the Court, when making decisions about children's welfare, to take into consideration the need to protect them from direct or indirect violence within the home, and section 68J makes it an obligation for all parties to family law proceedings to make the Court aware of relevant family violence orders.

16. For a discussion of the reform process in NSW see Reg Graycar and Jenni Millbank (2000). That said, there have been some recent significant Family Court decisions challenging traditional ideas of gender and sexual identity, for example, in terms of marriage: In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074 (12 October 2001). There must be, however, as some commentators have noted, a degree of caution in claiming this as a significant jurisprudential reform in family law, as the ‘radicality’ is never fully expressed by the language of the judgment. See Andrew Sharpe (2002).

17. For a thorough discussion of this concept, it is useful to refer to the work of feminist and critical legal scholars who have examined the ideal of equality within comparative jurisdictions and within the framework of liberal jurisprudence. See, for example, Graycar (2000); Martha Fineman (1999); and Frances Olsen (1985).

18. Graycar suggests that the reforms were not a legislative response to research data but a ‘response to the anecdotes constantly recounted to politicians; the stories of aggrieved non-custodial fathers who told (and continue to tell) bitter tales of gender bias against them by the legal system and particularly by the Family Court’ (2000, 746). For a thorough empirical analysis of the impact of the Reform Act, which included the finding that the standard of shared parenting did not necessarily accord with the reality of shared care giving, and was in fact at odds with the types of parents who pursue their matters to judicial determination as opposed to consent (paras 1.2–1.4), see Helen Rhoades, Reg Graycar and Margaret Harrison (2000).

19. Ruth Weston and Barry Smyth (2000, 10).

20. There are feminist arguments for and against the primary caregiver presumption. For a critical discussion see, for example, S. Boyd, H. Rhoades and K. Burns (1999). For a counter-position see Juliet Behrens (2002). It is also important to note that while men have been, for changing demographic and cultural reasons, spending more time with infant children, this has not significantly decreased the time women also spend with their babies; or the time that young children increasingly spend in external childcare situations. See M. Bittman and G. Matheson (1996, 23–24).

21. Graycar (2000, 746); Parkinson and Behrens (2004, 925); and Sophy Bordow (1992).

22. This seems to be particularly the case following the 1995 reforms, which have had a detrimental effect on women in a number of ways, including the new mandatory imperatives of primary dispute resolution—irrespective of whether there is a history of violence in the relationship—which creates an unbalanced field for consensual negotiation. Rhoades, Graycar and Harrison (2000) also found, for example, that the reforms created greater scope for an abusive non-resident parent to ‘harass or interfere in the life of a child's primary caregiver by challenging her decision and choices’ (para. 1.8). Other research has indicated similar global detrimental effects on women. John Dewar and Stephen Parker, for example, found that: ‘The combined effects of substantive changes, changes in policies and practices and administration of legal aid, and the over-burdening of the court system, have weakened the strategic position of women in family law’ (1999, 110).

23. For a critical discussion of the impact of these reforms vis-à-vis the arguments of women's groups see Susan M. Armstrong (2001) ‘“We Told You So …” Women's Legal Groups and the Family Law Reform Act 1995’, Australian Journal of Family Law 15: 129–54.

24. This point has resonance with some recent work in family law investigating autopoietic theories. That is, ultimately law is unable to know or translate the influence of other disciplines or external developments. This means that if other disciplines indicate, for example, that the child's best interests are the paramount principle, but these cannot effectively be determined by law, then law reform is pointless, and private ordering is preferred. This is an argument that could fit easily within the auspices of a neoliberal idea of law reform. For a discussion of these ideas see John Dewar (1998).

25. These comments have also been made in the Australian context at several recent conferences: the Lilith Conference, Melbourne, November 2004; the Castan Centre for Human Rights Annual Conference, December 2004; and the Hecate Conference, University of Sydney, December 2004.

26. Griswold is quoting from William Galston's Liberal Purposes published by Cambridge University Press, Cambridge, in 1991. The sociologists referred to, David Blankenhorn (1995) and David Popenoe (1996), have both written books that are influential upon fathers’ and men's rights groups, both here and in the United States.

27. These issues are discussed generally in Daniels (1998).

28. Griswold is citing Blankenhorn (1995, 26–48) here.

29. An excellent summary of the influences of feminism on men's rights and masculinity discourses, both positive and negative, is Kenneth Clatterbaugh (2000). A glance at any number of contemporary Australian websites reflects the influence of many of the works discussed, including that of Blankenhorn (1995).

30. See Maddox (2005, 71–106) for an analysis of the convergence of neoconservatism, neoliberalism and the rise of the religious right in terms of the concept of ‘traditional family values’.

31. Justice Evatt is being quoted from In the Marriage of G v. G (1981) FLC 91-042. Interestingly, when this case went to the Full Court, it was not in dispute that the husband was in contempt, nor was it disputed that a custodial sentence was warranted. The issue before the Court, rather, was the length of the sentence imposed. Hirst makes no reference to the parameters and facts of the decision in his analysis.

32. For a thorough overview of the legal issues involved in applying the UN Convention to domestic law, as well as the support and opposition (based on parental rights and privacy), see Kathleen Funder (1996).

33. Hirst does review a number of secondary sources (see ‘Sources’, Hirst 2005a, 1–85) but is quite selective in his focus and his emphasis. For example, the only research that is discussed without real critique is Barry Maley's Divorce Law and the Future of Marriage (2003).

34. S70NJ empowers the Court to make a contravention order subject to subsection (2), this subdivision applies if (1a) a primary order has been made; (1b) the Court is satisfied, on the civil balance of probabilities governed by section 140 of the Evidence Act that the contravention took place; and (1ba) the person committing the contravention does not have a reasonable excuse for the contravention. There is no limit, per subsection 2 of section 140 of the Evidence Act, of the matters the Court can take into account in deciding whether it is satisfied the contravention has taken place, but can take into account (a) the nature of the cause of action, (b) the nature of the subject matter and (c) the gravity of the matters alleged.

35. See Attorney-General's Department (2005). The recommendations have not yet been the subject of enactment.

36. See Joanna Fletcher and Allyson Foster (2005) for a summary of recent Family and Community Services data which supports the proposition that children in households headed by a sole mother are disadvantaged economically. For the policy history of the scheme, see Stephen Parker (1991). Parker's article is prescient, as he analyses the policy flaws at the time the scheme was introduced, and indicates that there is room for criticism by absent parents (fathers) as well as feminists, as assumptions are made about the nature of family responsibility. An historical assessment of the scheme, which takes up these concerns and tracks them in a systematic way, would be valuable, but is beyond the scope of this article.

37. See generally Rhoades, Graycar, and Harrison (2000). Hirst does not refer to this empirical research at all and, to the contrary, contends in his version of the impact of the reforms that they have been stymied by a Court obsessed with the ‘best interests of the child’ principle. See Hirst (2005a, 62–68).

38. For an overview of the policy behind, and law relating to, forms of alternative dispute resolution in the Family Court see generally Parkinson and Behrens (2004, 275–302). Hirst seems ambivalent, or perversely uninformed, about current procedures and requirements relating to compulsory mediation. For example, he exhorts the ideal of mediation, assuming that most families pursue their disputes all the way to trial, which is not the case (Hirst 2005a, 35).

39. See also Hirst (2005b, 116), in response to Liz Olle et al. (2005). Olle et al. represented a coalition of lawyers, academics, and community and health workers responding to Hirst's glossing and empirical misrepresentations of family violence, its statistical occurrence, and its impact on women and children, supported by research.

40. It is interesting to read this against the approach to tax rebates for home-focused mothers in ‘in-tact’ families, based in no small part on the modelling of women and work undertaken by British sociologist Catherine Hakim: see Maddox (2005, 87–93). The paradox reflects the tension between neoconservatism and neoliberalism.

41. The idea of reintroducing fault is not isolated to Maley and Hirst: see also E. Mills and M. Bagaric (2004).

42. Hirst also states that ‘women's groups’ ‘operate more effectively’ than men's groups at a lobbying level (2005a, 61). There is evidence, of course, to dispute this claim; see, for example, Marian Sawer (1999).

43. This idea of ressentiment acting as political pendulum is discussed by Margaret Thornton in her essay ‘Feminism and the Changing State: The Case of Sex Discrimination’ in this issue of Australian Feminist Studies.

44. See also Susan M. Armstrong (2004).