The Family Law Reform Act 1995 introduced a new legal framework for handling disputes involving children whose parents are separated or divorced. A radically different template for post-divorce parenting was established by the Act, which aimed to strengthen connections between fathers and children after separation. There were two key elements in this template. The first was the childs’ right to maintain contact with, and be cared for by, both parents regardless of marital status. The second was a notion of jointly held and exercised parental responsibility. / This thesis adopted a socio-legal approach in assessing how the legislative framework was applied in practice. A particular concern was to establish how the legislative ideal would be applied in social circumstances where parenting remains gendered in practical terms. The empirical basis for this inquiry was a sample of 40 Family Court files involving children matters that were heard in the Melbourne Registries of the Court in 1999 and 2000. The research involved collecting data from each of three layers in the files; parents’ affidavit materials, psycho-social assessments of the litigating families and judicial determinations. Judicial approaches could thus be assessed in the context of the evidence on which they were based. / The analysis reveals that a complex interplay between three factors has produced different standards of ‘adequacy’ that are applied to mothers (mostly residence parents) and fathers (mostly contact parents) in contemporary Family Court decision making. The three factors are the factual backgrounds of the cases, the litigation strategies adopted by the parties and particular psychological and legal concepts that are influential in informing current legal approaches to the question of what children need. / The research shows that separated fathers are making claims for bigger roles in their children’s lives. These claims occur in the context of family histories that often involve violence, entrenched conflict, mental illnesses and substance addiction. These backgrounds prevent fathers’ aspirations for more involvement with their children being completely realised, but a commitment to maintaining father-child relationships is nonetheless strongly evident. In many instances little scrutiny is applied to the nature and quality of the relationship being sustained by contact and some mothers and children continue to be exposed to family violence under court orders. Furthermore, the legal process allows little scope for children to assume a role in determining how their parenting arrangements are worked out. Litigation places them at the centre of conflict between their parents but their opportunity to influence its outcome is very limited.

While several Australian and international studies have explored the family lawyer-client interaction, these studies have been limited to investigations of discrete areas of the lawyerclient relationship and have been necessarily limited in their methodologies. The present study employed a quantitative empirical methodology in an Australian wide field study of 230 family lawyers and 94 clients that investigated the family lawyer-client interaction from a procedural justice framework. Using multivariate analyses, the study establishes that the Tyler and Blader two-component model of procedural justice applies in the lawyer-client dyad and is influenced by the approach of the lawyer, the emotional response of the client, and the level of co-party conflict that the client is experiencing. Further, the study gives meaning to the terms 'conciliatory and constructive' and 'adversarial' as they apply to family law dispute resolution. The study establishes a construct to measure the conciliatory and adversarial approach of family lawyers and identifies that lawyers tend to incorporate a mixture of the two into their work. The results also identify four distinct behavioural factors that characterise the two approaches: the client-centred and interest-based factors characterise the conciliatory approach; and the lawyer-directed and court-focused factors characterise the adversarial. The study found that in terms of perceptions of fairness, and feelings of satisfaction, the clients preferred the lawyers who took a client-centred and interest-based approach, but in circumstances where the clients were experiencing high-levels of conflict, or fear for the safety of their children, they also appreciated the lawyer who was lawyer-directed and court-focused. Overall, the study shows that in order to create a fair and satisfying dispute resolution service for their clients, family lawyers need to maintain a fine balance of family lawyering behaviour. On a general level, the study provides a profile of Australian family lawyers in terms of their approach to dispute resolution, their attitude towards ADR processes and their favoured negotiation styles. It also profiles family law clients in terms of their emotional adjustment to the divorce and their perceptions of the family lawyers assisting them to resolve their disputes. The study substantially expands the procedural justice theory base and has significant implications for practical family law education, government policy, family lawyering, and the ADR and collaborative law movements. The study indicates where future research could benefit these communities.

Thesis (LLM)--Macquarie University. Division of Law. / Bibliography: leaves 192-208. / Introduction -- The perceived problems and the new reforms -- The framework for children's matters in Australia -- Families and functions - regulating the Australian family -- Reorganising the gender hierarchy -- Men's movements, misconceptions and misidentifying the real issues -- Problems with "shared parenting": an ideal or a (rebuttable) presumption? -- Mediation not litigation -- Conclusion -- Bibliography. / In this thesis, I critically appraise the latest reforms of the Australian family law system and assess the underlying philosophy of these measures. I specifically analyse the introduction of shared parenting and mandatory family dispute resolution. My starting point is that legislative changes alone cannot be used as a means of social change. Legal models cannot function correctly if they reflect an ideal rather than social reality, and in light of the current reforms, the Australian family law system risks such a fate. The system, which presumes that parents share parental responsibility upon separation (and therefore during the intact family), does not represent social truth. It appears to make an assumption that shared parenting is the societal practice, but I believe the law is really being used to impose such an ideal. If the reforms are to be successful, I argue that substantial social and economic structural change is required, in order to break down the dichotomy between men's and women's roles, which continue to define the male role as economic and public and the female responsibility as care-giving and private. This is particularly important if the Government is genuine about its aim to make parenting gender neutral in practice and not just in theory. / The thesis demonstrates that the reform measures are a response to the perceived rather than real problems identified in the family law system, and that they are largely issues raised under the influence of fathers' rights groups. The response of the Government to remedy the system is therefore flawed as it is based on misconceived notions about the family law system. It incorrectly identifies judicial discretion as a fundamental cause of the problems and tries to replace it with a more rules-based approach to determining children's matters. I suggest that the real problems can be found in the continuance of deeply entrenched customs and gendered role constructions, and the remedies lie in their overhaul. The social culture that makes the mother the primary caregiver and allocates to the father diminished parental responsibility from the time the child is born needs to be transformed. A suitable legal response to the current impasse would be to begin by educating the public about the way the system works and provide counselling to families on how to structure their united life well before they reach the breakdown point. Assisting families while they are still functional, as opposed to when they are dysfunctional, would arguably make a large difference in how the family law system is understood. Moreover, it would be able to facilitate ongoing communication for separating couples and, most importantly, thereby uphold the best interests of the child. / Mode of access: World Wide Web. / 208 leaves