- Missing the Message - Michael Green QC
- Missing the Message - Michael Green QC, December 2000. A critical analysis of the April 1999 Interim Report "The Family Law Reform Act 1995: Can changing legislation change legal culture, legal practice and community expectations?".
Missing the Message
Michael Green QC 1
Abstract
The April 1999 Interim Report by Helen Rhoades, Reg Graycar and Margaret
Harrison, “The Family Law Reform Act 1995: Can changing legislation change legal
culture, legal practice and community expectations?”2 contains much that is valuable
and interesting. It contains findings which demonstrate changes in attitudes and
practice pursuant to the reforms. However, the Report fails to understand fully the
role of such legislation and fails to appreciate the nature of the movement for reform
which preceded the 1995 amendments to the Family Law Act 1975. The authors’
statement that “there was no real ‘mischief’ to which the Reform Act’s co-parenting
reforms was responding” flies in the face of earlier research and anecdotal evidence.
Their suggestion that the push for reform came largely from “fathers’ rights groups”
is short of the mark. There is no indication that consumers of family law services were
consulted. It appears that some community consultation was utilised in the preparation
of the Final Report (not available at this date). The latter’s Executive Summary
contains disturbing judgements which are not consistent with the perceptions of
consumers nor of many professionals in the field. It will be interesting to examine the
bases for these conclusions when the Final Report is published.
1 Michael Green is a Queen’s Counsel, and author, in private practice in Sydney.
2 The copy of the Report used for this paper contains on its frontispiece the crests of the
University of Sydney and the Family Court of Australia. It was downloaded electronically
from the Family Court website. All page numbers, therefore, are taken from that copy.
Nuance no.2 December 2000 49 (16) Michael Green
Missing the Message
Michael Green QC
It is apparent from the acknowledgements on pages 2 and 7 of the Report that
the information gathered came from “judicial officers, legal practitioners, counsellors,
mediators, domestic violence workers and others”, and that they did not include
consultations with the consumers of family law services, namely the men, women and
children who are intimately affected by the processes of divorce and separation. There
is no doubt that such consultation as occurred is both valuable and valid for assessing
changes in legal culture and practice. However, relying on the same information to
assess “community expectations”, as the title of the Report suggests, raises obvious
problems. The opinions of professional stakeholders are clearly important in
examining the actions and reactions of consumers. But it would be a bold assertion to
conclude that the judgements of professionals and the attitudes of consumers are
identical. In fact they can be remarkably divergent. It is argued that one of the major
problems in the family law arena is that little real listening to men and women has
been done by judicial officers, researchers and academics.
Another important feature to note is, as indicated on page 7, that the research
was undertaken during 1997 and 1998. There has been much development in thought,
research, and practice since then. In fact the last two years have seen major progress
in healthier attitudes towards the parenting of children, especially regarding
fatherhood. The community and the court have recognised that boys and girls need
involved fathers as well as mothers. However, the signs were there in the 80’s and
90’s.
The Background to the Reforms
In his second-reading speech moving the amendments to the Family Law Act
1975, Mr Peter Duncan said:
“The original intention of the late Senator Murphy was that the Family Law Act
would create a rebuttable presumption of shared parenting, but over the years the
Family Court has chosen to largely ignore that. It is hoped that these reforms will now
Nuance no.2 December 2000 50 (16) Michael Green
call for much closer attention to this presumption and that the Family Court will give
full and proper effect to the intention of the parliament.” 3
Anyone who practised in the Family Court in the 1980’s and 90’s will attest to
the veracity of that statement. The practice of the court was to establish the mother
and children in the family home and to relegate the father to the status of a noninterfering
fortnightly visitor. This was in spite of earlier research which indicated
that the happiest children of separated parents were those who had easy access to both
homes.4 To be fair to the court, society in general had only just begun to recognise the
importance of fathering in the lives of children.
True it is, as the authors of the Report record, that there was a chorus of
complaint to the Joint Select Committee from fathers and fathers’ groups5. However,
they were by no means the only voices of dissent. For instance, the Australian
Institute of Family Studies presented a report to the Committee which revealed that
42% of the fathers surveyed wanted more contact with their children, and 50% had no
contact at all6. Two Australian reports in 1992 showed similarly disturbing results. In
one, while 64% of fathers had regular contact, only 48% had overnight contact with
their children7. In the other, the Family Law Council found that half of the children
surveyed saw their fathers less than six times per year or not at all8. At the same time,
American research was illustrating improved contact rates pursuant to joint parenting
3 Family Law Reform Bill 1994: Consideration of Senate Message, 21 November 1995.
Database: House Hansard, p 3303.
4 Wallerstein J and Kelly J Surviving the Breakup: How Children and Parents Cope
With Divorce, Basic Books, New York, 1980.
5 Joint Select Committee on Certain Aspects of the Operation and Implementation of
the Family Law Act. The Family Law Act 1975: Aspects of its Operation and Interpretation,
AGPS November 1992.
6 A Submission to the Joint Select Committee Enquiry on Certain Family Law Issues,
Melbourne1993.
7 Janne Gibson Non-custodial Fathers and Access Patterns, Research Report No 10,
Family Court of Australia 1992.
8 Patterns of Parenting After Separation: a Report, AGPS Canberra, 1992.
Nuance no.2 December 2000 51 (16) Michael Green
agreements 9. Furthermore, research both in Australia and overseas demonstrated loss
and maladjustment in children who lost contact with their absent parents 10.
Significantly, during the late 1980’s and early 90’s, many commentators began
to question the efficacy of the “usual orders” for contact which established the mother
as the resident carer and the father as the fortnightly visitor. Thus, for example, one
writer said: “If gender equality means anything, then under normal circumstances
children of a divorce have a right to a relationship with both their parents, not to a
relationship with one and a visit from the other.” 11
Over the same period, the majority of involved parties – members of the Joint
Select Committee, officers of the Family Court, the Australian Law Reform
Commission, professionals and litigants, expressed concern that the Family Court was
“under utilising” its powers to enforce contact orders 12. Indeed in 1998 the Family
Law Council revealed that the greatest number of complaints about the Court arose
from its failure to enforce its own orders13.
With regard to child support, studies by the Australian Institute of Family
Studies and also by other researchers in 1990 – 1993 pointed to the real financial
problems experienced by paying fathers pursuant to determinations made by the Child
Support Agency 14.
Against this background, then, strong exception is taken to a signal statement at
page 15 of the Report: “…..there was no real ‘mischief’ to which the Reform Act’s
co-parenting reforms were responding…………Unlike the impetus for the child
9 Kelly J B Current research on children’s postdivorce adjustment, Family and
Conciliation Courts Review, Vol 31 No 1 1993 pp 29-49.
10 Burdon Barry E Fathers in Families, in Briggs (ed) Children and Families:
Australian Perspectives, Allen and Unwin, Sydney 1994.
11 Family Matters No 40, Autumn 1995.
12 For the Sake of the Kids – Complex Contact Cases and the Family Court, Australian
Law Reform Commission Report No 73 1995.
13 Family Law Council Interim Report: Penalties and Enforcement, March 1998.
14 Australian Institute of Family Studies Paying for the Children: Parent and Employer
Experiences of Stage One of Australia’s Child Support Scheme, Monograph No 10,
Melbourne 1990.
Nuance no.2 December 2000 52 (16) Michael Green
support reforms, there was no evidence that children were being harmed by the law
and practice governing custody and access.”
This statement is contrary to the evidence cited above and to other evidence,
both professional and anecdotal 15.
The statement “……the need to encourage parents to share their responsibilities
after separation was not based on any uncontested research information” is only
accurate to the extent that at that time some American studies had not revealed clear
evidence of benefits for children from contact with absent parents. But it ignores a
constant line of authority which did demonstrate positive effects. Thankfully Dr Paul
Amato has demolished the pessimistic outcomes arguments in his groundbreaking
meta-analysis16.
The Aims of the Reform Act
The Report identifies five objectives of the amendments:
One, “to effect an attitudinal shift” to encourage both parents to share the
parenting responsibilities of raising their children after separation.
Two, to reduce disputes between parents by removing the “proprietary” notion
sometimes attaching to children in custody battles.
Three, to draw attention to “the rights and interests of children” rather than
those of parents.
Four, to encourage the use of counselling and mediation to settle disputes rather
than resorting to the Court.
Five, to ensure that family violence is taken into account in making parenting
orders.
The Changes
The main changes to the Family Law Act are those in Part VII. Principle among
these are the enshrinement in the Act of the right of children to know and be cared for
by both parents, and to have contact with both parents, “except when it is or would be
contrary to a child’s best interests.” The old notions of guardianship, custody and
15 For a treatment of the research on the benefits of father-child contact see Fathers
After Divorce, pages 63 to 83, by Michael Green, Finch Publishing Sydney, 1998.
16 Amato Paul R and Gilbreth Joan G, Nonresident fathers and children’s well-being: A
meta-analysis, Journal of Marriage and the Family, 61: 557-573.
Nuance no.2 December 2000 53 (16) Michael Green
access have been replaced by parental responsibility, residence, contact and specific
issues orders. There is also provision for parenting plans regarding the future care of
the children.
The “colour” of the Report is perhaps displayed on page 18 when it describes
the child’s right to contact with both parents as “[o]ne of the most contentious aspects
of the reforms.” It goes on to claim that why many commentators viewed this change
positively was that it would allow non-custodial parents to have “a greater say in the
upbringing of the child”. This is a classic understatement. The reality is that most
professionals and parents saw this as stating in black and white for the first time the
right of a child not just to see and know both parents but to have meaningful
relationships with them, particularly with the non-resident father. The fear expressed
by others that this section would be used by contact parents as a weapon to harass
custodial mothers or to engineer situations which would compromise their safety was
quickly allayed by the Full Court in B vB (1997) 21 Fam L R 676. Given that the
section specifically provides that the best interests of the child qualifies the right to
contact, it is curious that any such fear was ever taken seriously.
The Report’s Findings
Practitioners’ Understanding, Advice and Practice:
Responses from Solicitors
A total of 166 solicitors responded to the surveys. Between 60% and 70% said
that they had changed their advice to clients about parental responsibility as a result of
the reforms. Some solicitors noted changes in the court’s practice following the
amendments: for instance, some judges making interim orders for generous amounts
of contact or for children to live “week about” with each parent. Many believed that
the court was more disposed to give or continue contact even when domestic violence
was relied on in order to suspend it. Lawyers reported that the court was now more
reluctant to allow custodial parents to relocate and that it was easier to obtain an
injunction to prevent a relocation.
The results of the solicitors’ surveys showed that parenting plans are being used
only rarely, and that most lawyers are not promoting mediation, and demonstrate little
understanding of what mediation can achieve.
Nuance no.2 December 2000 54 (16) Michael Green
Responses from Court Counsellors
Responses were received from 55 Family Court counsellors. The Report notes
that court counsellors are “generally more supportive of and enthusiastic about the
reforms than lawyers.” (p 27) The Report then states that the amendments “appear to
have had relatively little impact on the practice of most counsellors” as only 35% said
that they had changed their explanation of parental responsibility. As 35% is a
substantial portion of 55 respondents, this conclusion is curious. Nevertheless, it is
interesting to read that many counsellors said that the amendments simply gave legal
weight to the practice that they had used for some years, namely the promotion of
shared parenting.
A number of counsellors were critical of judges and lawyers who failed to adapt
their practices to the changed law. They also complained of lawyers continuing to rely
on the adversarial system rather than promoting mediation to solve disputes.
Some counsellors (no number is given) reported an increase in fathers’
applications for shared residence orders. Some fathers were said to be angry and
frustrated as they mistakenly believed that the new laws gave them “equal time” with
their children.
Many counsellors were said to claim that the reforms had failed to make
practical differences to parenting arrangements after separation because of a lack of
public education about the changes, “and/or because of continued ‘adversarial tactics’
by lawyers.” Some (no number given) saw domestic violence as an obstacle to shared
parenting, and that there were opportunities for increased harassment of custodial
parents by contact parents.
A clear majority, however, (62%) said that the reforms had “changed the way
parents think about children’s issue after separation.” Amongst other things, there was
an increased awareness in fathers of their continuing responsibility for parenting their
children after separation.
Responses from Private and Community Mediators
The Report states that the vast majority of these mediators (84%) saw the
reforms as a fundamental change to the law, particularly in relation to parental
responsibility and the rights of children. A “number” (no figure given) of mediators
said that they did not have to change their practice as they had been comfortable with
the reform’s approach for some time.
Nuance no.2 December 2000 55 (16) Michael Green
Significantly, most mediators (81%) also said that the reforms had changed the
way parents think about children’s issues. This included an increase in awareness of
the importance of children’s need to maintain contact with both parents and with
others important to them. However, they also noted a gap between the ideal of shared
parenting and the reality. Generally speaking, they shared similar views to other
professionals regarding relocation, family violence issues and increased expectations
of fathers.
‘Genuine’ Shared Residence Orders/Arrangements
A number of solicitors said their had been a “rush” of fathers demanding “equal
rights” to their children as a result of the amendments. “Some” promoted shared
residence orders, but “most” solicitors were not in favour of them. While “most”
maintained that final orders for shared residence remained rare, “several solicitors”
claimed that interim orders for children to live “week about” or on a “split week”
basis had become commonplace since the reforms.
The majority of counsellors and mediators reported that the changes has
increased the expectations of fathers and “correspondingly affected the expectations
of mothers”. A number said that there had been a “sudden demand” by fathers for
‘equal time’ with their children. Court counsellors were generally supportive of
shared parenting and were critical of lawyers for failing to promote it. However, most
counsellors viewed ‘equal time’ arrangements as ‘disruptive and destablising’, and
recommended them only when there was a high level of cooperation between the
parents and they lived close to one another.
It is interesting to note that among the private counsellors there was more
support for shared residence, with 48% claiming they frequently or sometimes
encouraged such arrangements and 51% saying they never or rarely did so.
It appears that 30 judicial officers (judges and judicial registrars, but not
registrars) were canvassed by way of interviews. None of the judges had made a
“final order” giving equal time residence to each party, and they generally felt such an
order inappropriate. This is in no way surprising as if the parties get to a final hearing
this generally indicates that they are in such conflict that a judge would take the view
that shared residence would not work. Most said that the reforms had not changed
their approach to making residence orders. However, “a few” said that the
amendments had changed their practice in making interim orders. Interim
Nuance no.2 December 2000 56 (16) Michael Green
applications, however, in most registries are dealt with by registrars, yet there is
nothing in the Report to indicate that their views were sought on any issue. Nor is
there any attempt to canvass the huge numbers of consent orders that, according to
solicitors’ reports, contain elements of shared parenting.
The Report found unequivocal evidence that the making of interim orders
involving genuine shared residence and ‘equal time’ arrangements were common (this
was in 1997 and 1998: it would be interesting to view more recent research and from
a larger sample).
The most common form of order used by solicitors was a residence/contact
order. Many said that they sometimes used a residence/residence format for emotional
or tactical reasons. On the other hand, most counsellors and mediators said that they
frequently or sometimes encouraged parents to agree to a residence/residence format.
Some believed that this was the intention of the reform Act. Overall, the Report noted
“a greater enthusiasm” for shared residence among counsellors than among judges
and lawyers. Unlike lawyers and judges, most counsellors maintained that a shared
residence arrangement was likely “to increase the possibilities of “co-operative
parenting.”
Amount of Parent-Child Contact
The Report notes that the number of applications for contact, as a percentage of
all orders sought, has remained much the same as before the amendments, at about
20% of all applications.
Many solicitors claimed that fathers were seeking more liberal contact than
before the reforms. Whereas in the early stages of the research few believed that
fathers were actually obtaining more contact with their children, this had changed in
the April 1998 survey when about one third of the solicitors noted that fathers were
getting more contact. A third also said that interim orders frequently awarded more
liberal forms of contact than the old two days per fortnight. Most attributed this
increase to contact parents being “more prepared to pursue their rights” since the
reforms, and also to some judicial officers being “more aware that the child should
have as much time as possible with both parents.”
The majority of judges resisted the suggestion that they had changed their
attitude and practice regarding contact as a result of the reforms. However, some said
Nuance no.2 December 2000 57 (16) Michael Green
that they had tried to move from the ‘alternate weekends’ regime when possible and
made efforts to give as much contact as was practical.
Parental Responsibility
On the question of whether the new legislation had made a difference to postseparation
parenting in practice, the reported response from solicitors and counsellors
was that it had not. This finding needs to be examined as it does not appear to be
consistent with the positive responses from counsellors regarding parents’ increased
awareness of the benefits of contact. As is indicated below, such a conclusion could
only be properly tested by a survey of participating parents.
Many solicitors said that resident parents complained about contact parents’
failures to exercise contact on a regular basis, and that just as many contact parents
complained about resident parents’ failures to allow contact. Counsellors and
mediators similarly noted a difference between the theory and reality of shared
parenting. The legislative ideal, they believed, had not been met.
It is suggested that this conclusion is based on small samples and on incomplete
information. Solicitors and counsellors rarely see, nor do they follow, the success
stories. They base their judgements on the cases that come to them, some difficult or
intractable, particularly those that keep returning to them. This is not an adequate
basis on which to draw conclusions on the efficacy of the reforms.
The only way that the practical effect of the new legislation could be tested
would be to survey those who have presented to solicitors and counsellors after
separation, been exposed to the philosophies of the reforms, and then to chart them
through their successes and failures. This has not been attempted here. Indeed it
would require a mammoth research effort. The best we have at present is what we
glean from a careful scrutiny of anecdotal evidence.
As already suggested, it would be unwise to assume that the opinions of
solicitors, counsellors and judges accurately reflect those of consumers. The
perceptions of professionals may be interesting, but they do not and cannot provide
statistically useful information on the success or failure of the reforms regarding
practical parenting after separation.
Nuance no.2 December 2000 58 (16) Michael Green
Parental Disputes
Family Court statistics show a marked increase in the number of applications
alleging contraventions of parenting orders. Solicitors believed that a majority of
disputes were instigated by non-resident fathers. The Report canvasses the opinions of
solicitors and judges who describe many such applications as “trivial” or “frivolous”
or “not made out” or “an attempt to harass the resident parent.” The Report gives a
graphic example of one father’s foolishness in pressing a hopeless application. It is
disappointing to see that not one reference is made to any instance of a father pressing
an application which is clearly in the spirit of the reforms. If the surveys failed to
reveal any, then the structure and nature of the surveys must be questioned. Moreover,
an incident which at the time appeared serious to a contact parent may become trivial
by the time the Court is able to deal with it. In other words, the triviality may be the
fault not of the litigant but of the inappropriate nature of the Court’s procedure in
dealing with breaches of contact orders.
Family Violence and the Right to Contact
The responses from solicitors asked about the impact of allegations of violence
on contact since the reforms were not uniform. Some said there had been a change,
particularly with interim hearings, others said there had not. Most seemed to say that
the allegations had to be “serious” before they would affect a contact order.
The Report’s paragraph on page 53 detailing the importance of a “private
welfare report” and a “good affidavit” in the Court’s assessment of whether contact
poses a risk for a child is both useful and alarming. That the welfare of a child and the
practices of its parents should depend on such contingencies is staggering, and
demands the urgent attention of the Parliament.
Most judges reported that the new provisions had made no difference to their
practices in dealing with violence and contact. However, “a number” said that the
reforms had affected their practice, and “several” claimed they had affected the
submissions of counsel in children’s matters. Several demonstrated a willingness to
keep some form of contact going as being in the child’s best interests.
Interim v Final Orders
The report produces figures which indicate that there has been “a dramatic
reduction in the incidence of orders suspending contact since the reforms were
Nuance no.2 December 2000 59 (16) Michael Green
enacted.” Further figures show that there has been no corresponding effect at final
hearings, when “the evidence of domestic violence is adduced and tested…” The
Report goes on to draw this conclusion: “These figures suggest that interim contact
orders are being made in circumstances where contact is not in the child’s best
interests, and when it may well be unsafe for the child and the resident parent.”
This conclusion is unwarranted for a number of reasons.
Firstly, the figures themselves should be scrutinised to see if they are
statistically useful. The Executive Summary states that the figures were taken from “a
selection of 209 pre-and post-Reform Act interim and final judgements.”
Secondly, and more importantly, it is simply not the case that at a final hearing a
judge pronounces on the truth or falsehood of the allegations of violence. Indeed such
a view is contrary to the law17. The judge is obliged to decide whether there is “an
unacceptable risk” of harm to the child and this is something quite different.
Furthermore, evidence of domestic violence is not the only evidence that “is adduced
and tested”. All matters touching on the nature of contact, the relationships between
child and parents, between parents, relatives, and others, living conditions and
anything else considered relevant by the parties and their lawyers will be aired and
ventilated. By the time the dispute comes to final hearing – and the Report identifies
the effect of lengthy delays on interim hearings – all kinds of things might have
occurred: there may have been episodes of violence or there may have been none at
all; relationships between the parents may be so soured that lack of communication
renders contact extremely difficult; the child may be so traumatised by eighteen
months or two years of court proceedings and family conflict that he or she chooses
no contact as the only way out of the maelstrom.
In the circumstances of a comparison between such widely varying factors, to
compare interim hearing figures with final hearing figures is like comparing apples
with oranges. The Report’s suggestion that these figures indicate that contact was
unsafe at the interim hearing is simply invalid.
For the same reasons, it is argued that pre- and post-reform figures for final
hearing would not be useful. However, pre- and post-reform figures for interim
hearings would have some statistical significance providing they come from a
17 M v M (1989) 166 CLR 69
Nuance no.2 December 2000 60 (16) Michael Green
reasonable sample. In the Report these appear to indicate that an order suspending
contact is harder to obtain following the reforms. This accords with the responses
from many solicitors.
Relocation
A quarter of the solicitors surveyed said that the court’s attitude to relocation
had become more restrictive since the reforms. Most thought it was now a little more
difficult to get permission to move away because of the right-to-contact provision in
the reform Act. A number of judicial officers indicated a similar change in practice,
particularly at the interim hearing stage.
The examination of court judgements (again no number is given) revealed that
permission to relocate was rarely given at interim hearings. The majority of final
hearing judgements where relocation was refused indicated that the child’s right to
contact was a determining factor. Thus, the Report suggests, the reforming
amendment has made a difference to the outcome.
Conclusions
It is argued that the Interim Report on some fronts misses the message of the
reforms contained in the Family Law Reform Act 1995. Some of its conclusions are
wrong or based on incomplete information, particularly that relating to family
violence and final hearings. Moreover, no attempt was made to track the success or
failure of parenting practices among separated parents who had been exposed to the
reforms. Perhaps this has been done for the Final Report.
The Report correctly emphasises the incidence of fathers removing themselves
from the lives of their children, but misses the roots of this phenomenon. Nor does it
give adequate emphasis to the huge difficulties for fathers caused by mothers who
unjustifiably obstruct access, commonly described by many lawyers as a huge
problem. The Report deals fully with family violence, generally in terms of male
violence. It misses the significant presence of abusive, neglectful and dysfunctional
mothers who cause enormous damage to themselves and their children.
However, there is much that is useful in the Report’s findings. It presents clear
evidence that the reform amendments have changed attitudes and practice. Lawyers
have changed the advice they give to their clients. Counsellors and mediators are
supportive and enthusiastic about shared parenting and shared residence, and claim
Nuance no.2 December 2000 61 (16) Michael Green
that the legislation confirms existing philosophy and practice. Importantly, they find
that it has changed the way parents think about the parenting of children after
separation. That these changes are not always seen in practice is not the fault of the
legislation but can be attributed to lack of public education (and lack of professional
education), and to overuse of adversarial practices by lawyers.
There has been no increase in applications for contact. The increase in hearings
relates to allegations of contraventions of contact orders. The Report goes to some
pains to illustrate the trivial nature of some applications by fathers. While passing
reference is made to the increased parenting expectations of fathers, it is unfortunate
that no attempt is made to produce examples of those applications which demonstrate
the anxiety of some fathers for the welfare of their children. The use of the expression
“fathers’ rights groups” is demeaning and betrays a lack of appreciation of the
philosophies of most divorce law reform associations.
The research findings indicate a more liberal attitude to contact in the Court and
a willingness to maintain some form of contact except where it is clearly not in the
best interests of the child. There is unequivocal evidence of more orders for shared
residence/parenting. The issue of relocation is more carefully scrutinised in terms of
its effect on parent/child contact.
It appears that at interim contact hearings where there is an allegation of abuse,
the Court reacts according to the seriousness of the complaint. The general response at
that stage is for some form of supervised contact. This reflects a changed practice in
the Court. There is no reliable data which indicates that judicial officers are exposing
children to risk of serious harm in their contact orders at interim hearings. Indeed,
there is anecdotal evidence that registrars – the judicial officers who deal with most
interim applications – are enormously careful when confronted by serious allegations
of child abuse.
That primary dispute resolution (mediation and counselling), and also parenting
plans, are not being more widely used appears to be related to the reluctance of
lawyers to recommend them.
While the Report correctly identifies five objectives of the amending legislation,
it misses a sixth, namely that changes in the law often pick up and give momentum to
social movements which have already begun.
Nuance no.2 December 2000 62 (16) Michael Green
Mass movements are the way that we yank on the steering wheel of our society
and make it go in another direction. If you look back over recent history, the trade
union movement, black civil rights, the green movement, the nuclear disarmament
and peace movements, all shared the same pattern: they seemed impossible at first,
but they kept growing, and history was changed. Movements are “outbreaks of
common sense''. The tension has to be there already, a deep injustice or pain that can
no longer be suppressed. A ground-breaking book can help, or a passionate voice, a
Martin Luther King or a Germaine Greer, but leaders do not create a movement, so
much as release one.18
The answer to the researchers’ question: ‘Can changing legislation change legal
culture, legal practice and community expectations?’ is ‘No, at least not of itself’.
What legislation can do is to ratify and promote healthy social phenomena or
movements, giving them an imprimatur which will encourage more enlightened
thinking, research and practices, all of which together will result in changes of
attitudes and behaviour. This takes time and patience and courage, more than the four
years that the reforms have seen. But such renewal will not happen without the
blessing of the legislative reforms.
References
Amato, P. R. and Gilbreth J. G, ‘Nonresident fathers and children’s well-being: A
meta-analysis’, Journal of Marriage and the Family, 61, pp. 557-573.
Australian Institute of Family Studies, (1990) ‘Paying for the Children: Parent and
Employer Experiences of Stage One of Australia’s Child Support
Scheme’, Monograph No. 10, Melbourne.
Australian Law Reform Commission (1995) ‘For the Sake of the Kids – Complex
Contact Cases and the Family Court’ Report No. 73, 1995.
Burdon B. E. (1994) “Fathers in Families”, in Briggs (ed) Children and Families:
Australian Perspectives, Sydney, Allen and Unwin.
Family Law Reform Bill 1994: ‘Consideration of Senate Message’, 21 November
1995. Database: House Hansard, p. 3303.
Family Law Council Interim Report: Penalties and Enforcement, March 1998.
Family Matters No. 40, Autumn 1995.
Gibson, J. (1992) ‘Non-custodial Fathers and Access Patterns’, Research Report No.
10, Family Court of Australia 1992.
18 The Sun Herald, page 14, Sydney 29 October 2000
Nuance no.2 December 2000 63 (16) Michael Green
Green, M. (1998) Fathers After Divorce, Sydney, Finch Publishing.
‘Joint Select Committee on Certain Aspects of the Operation and Implementation of
the Family Law Act.’ The Family Law Act 1975: Aspects of its Operation
and Interpretation, AGPS November 1992.
Kelly J. B. (1993) ‘Current research on children’s postdivorce adjustment,’ Family
and Conciliation Courts Review, Vol. 31, No. 1 pp. 29-49.
M v M (1989) 166 CLR 69
The Sun Herald, page 14, Sydney 29 October 2000
Wallerstein, J. and Kelly, J. (1980) Surviving the Breakup: How Children and Parents
Cope With Divorce, New York, Basic Books.
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