Equality Based Provisions Of The Family Law Act And The Invisibility Of Women

Australia's current family law provisions about child-related disputes bear little relationship to the lives and material circumstances of the women they so deeply affect. It is a profound paradox that this is largely a result of the fact that the development of the most recent reforms to the children's provisions of the Family Law Act 1975 (Cth) was significantly influenced by the concepts of equality and shared parenting.


Introduction
Australia's current family law provisions about child-related disputes bear little relationship to the lives and material circumstances of the women they so deeply affect. 1 It is a profound paradox that this is largely a result of the fact that the development of the most recent reforms to the children's provisions of the Family Law Act 1975 (Cth) was significantly influenced by the concepts of equality and shared parenting.
It is fair to say that those involved with developing the current laws would consider them to be equality-based reforms which are not only proper and appropriate, but progressive and far-reaching. 2 fact these reforms, by adopting equality as the normative standard, and by removing gendered references and creating a gender-neutral paradigm, have in effect negated the reality of many women's experience and reinforced men's control over their ex-partner and children after separation 3 This article is concerned with the invisibility of women's interests in family law disputes about children which has resulted from the equality discourse adopted for family law reform.The notion of parental responsibility has been chosen to exemplify the way in which this invisibility has been entrenched, although the issue of the application of the best interests principle is also important in this context.The article advocates that the equality discourse be abandoned in the context of post-separation children's disputes, and that provisions be developed which more accurately and appropriately reflect the reality and (1999)   difference of women's lives and experience. 4It concludes with references to alternative strategies for making women and their interests more visible in the context of family law child-related disputes.

Equal Women and Invisible Women When it Comes to Laws About Child-Related Disputes
Martha Fineman has said that (feminists concerned with law reform considered the push for degendered rules a symbolic imperative even when they recognised that such reforms might actually result in removing an arguable advantage for women, as in the case of maternal preference rules for deciding custody cases. 5 Australia, many of our laws, as a result of the work of feminists, are gender-neutral and equality based and this is good. Australia's family law is also gender-neutral and equality-based.This is in part a result of the feminist equality discourse, but in terms of the 1995 reforms to the children's provisions, it is mainly a result of the appropriation of that discourse by men's rights groups, and the influence of the experiences and perceptions of a male elite working within patriarchal institutions 6 The Family Law Act's children's provisions are based strongly on formal equality.As many feminists have said before me, however, whilst laws based on formal equality are persuasive and relatively easy to justify politically,7 they often fail to provide substantive equality.And where parties, who are not in equal positions, are treated equally, significant inequities can arise. 8cause of the reality of the gendered nature of the lives of most women, it is dangerous ever to assume that women are in the same position as men.But in terms of family law and parental disputes the application of formal equality can rarely result in a parity of position between individuals.This is not only because of the societal and structural differences in the lives of men and women, but also because, in many important and fundamental ways, mothers and fathers and the work that they do in relation to children remain, in most cases, significantly different.The fact is that "(t)he theory of equal treatment of the sexes in family law ignores social and economic reality ...". 9 Even where mothers work outside the home as well as in it, care and responsibility for child-rearing continues to rest largely with the mother. 10Both pre-and post-separation, women carry the bulk of the responsibility for fulfilling the most fundamental functions of the family: 11 the day-to-day care of children, and the nurture of each child's development both as an individual and as a member of society. 12Importantly, an overwhelming majority of single parents are women, and single mothers experience levels of poverty not experienced by their former partners. 13uality is simply not a concept which can be applied in a blanket way to parenting in any real or general sense.If equal parenting rarely exists, if at all, prior to the break down of a relationship, then it will be an even more rare occurrence for it to exist where parents are in conflict after their relationship has broken down.
Equality based children's provisions not only leave many mothers struggling before the family court or disadvantaged in imbalanced mediations, they also reflect a societal devaluation and negation of the mother-role and a disregard for the personal, career, emotional and financial sacrifices that role entails.These are sacrifices not often made equally by fathers.
The application of an equality based paradigm of law reform to children's matters has not therefore resulted in contemporary and far-sighted laws.Rather it has resulted in the reality of women's child-care work and their daily child-care experiences becoming invisible before the law.

An Example of Invisibly Equal Women in Child-Related Disputes: "Parental Responsibility"
The Family Law Act's concept of parental responsibility illustrates this point well. 14ere family lawyers once worked with the unsatisfactory but relatively concrete terms 'custody' and 'guardianship'15 they now work with a very vague concept of 'parental responsibility' (Division 2 of Part VII). 16Put simply, 'custody' was the term that generally referred to the right to make decisions about the daily care of children and 'guardianship' involved a right to make decisions about the children's long-term welfare.
In the past a common order in the Family Court involved sole custody being awarded to one parent with joint guardianship being exercised by both.This would mean, practically, that the parent with custody, usually the mother, would have the necessary authority to make decisions on her own about daily care matters such as what food the child should eat, the child's daily schooling concerns, whether the child should see a doctor for a minor ailment.As a joint guardian the father had the 'right' to contribute to decision-making about long-term issues such as the child's religion and so on.
The term 'parental responsibility' is not clearly defined.Section 61B(1) of the Act says merely that it covers "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."Interestingly, as no further elucidation of the concept is provided, the view has been taken that parental responsibility "... comprehends all the duties, powers, responsibilities and authority that a guardian and custodian of a child would have at common law." 17 The old law, rejected in part for its inappropriate semantics and emphasis on parental proprietorial rights in relation to children, is therefore still required apparently to give meaning to the vagaries of the current law.
Parental responsibility is exercised by each of the parents until either they alter it by a parenting plan or the court makes an order to alter it.Section 61C specifically says that a change in the nature of the parents' relationship, separation for example, is insufficient to alter it.
There are a number of practical and legal problems that arise with this change in the law, and I am certainly not the first to raise them. 18rst, from a practical perspective, although lawyers are deriving assistance with the meaning of the new law from the old, a high degree of uncertainty has undoubtedly been inserted into the law regarding who has what authority when it comes to parental decisionmaking.Uncertainty is just what angry or violent male ex-partners, who are looking to use litigation as a tool for venting their anger or continuing their abusive behaviours towards the mother of their children, are searching for. 19men are potentially significantly disadvantaged by the scope for litigation that this uncertainty creates. 20But the reality of women's lives in this regard has been ignored.Women and men are ostensibly equal before this law, notwithstanding the fact that it is men who more often have the funds after separation to afford litigation. 21And notwithstanding the fact that many women are left to turn to a Legal Aid Office that is increasingly refusing to fund them, and then perhaps to an under-resourced community legal service, and finally often are left with the stress and anguish of self-representation. 22 So practically, women's reality has not been accommodated, or acknowledged by this law or by relevant policy in areas such as Legal Aid funding.In being equal the difference of women's gendered lives is made invisible.
Secondly, from a legal perspective, the law is ambiguous as to whether parental responsibility is to be exercised cooperatively or independently on separation.A number of commentators have remarked on this issue, 23 and it has been the subject of judicial comment. 24The cooperative model seems in fact to be the intention of the policy makers, 25 however, in the case of Vlug v Poulos 26 the Full Court refers to its own indication in the case of In B and B: The Family Law Reform Act, that whilst joint consultation is desirable in terms of major decisions concerning children, individual decision-making will  necessarily have to occur. 27Despite this uncertainty the provision has remained unchanged since its introduction.
Under either scenario (cooperative or independent) women who have residence of their children are potentially placed in an extremely problematic position when faced with an ex-partner who wants to use a particular interpretation of the Act to make the mother's life difficult. 28In either situation a woman who has residence of her children, and therefore primary responsibility for them, does not have primary authority to make decisions relevant to that care work.Not unless she takes the legal step of formalising her decisionmaking abilities in a parenting agreement or specific issues order.
For those women whose partners assert that the Act requires a shared parenting approach there is unlimited scope for interference in their daily decision-making about the children.That is, unless such a woman can orchestrate an agreement to a parenting plan which limits this scope, or unless she can fund proceedings in the Family Court for some specific issues orders to this effect, she is left with little power to counteract, for example, endless phonecalls, visits and disagreements about the way she is caring for the children.
To turn to the alternative at the other end of the spectrum, a woman who is faced with an ex-partner who believes the Act allows an independent model of parenting29 (and this seems to be the current position of the Full Court) may find that her children return to her from a contact visit with their braces on their teeth removed, with their school having been changed, or even minus an appendix or a kidney. 30After all in the Full Court's words it is only desirable that consultation occur on major issues affecting the children, not mandatory. 31Again such a mother needs a clause in a parenting plan or a court order before such action on the part of a contact father would be considered outside the scope of his parental responsibility 'rights'.
Coping with a father's exercising of his parental responsibility in this way has serious practical, financial and emotional implications for mothers.
Peter Nygh said of these provisions prior to their introduction that "[m]uch will depend on the approach taken ... by judges and practitioners.The revolution may be more apparent than real."32It is, indeed, extremely important to monitor the way in which the Court and its judges continue to deal with the concept of 'parental responsibility'.It matters little, however, that these concerns could be more technical than real. 33The fact is that the effect of the legislation, on either interpretation, is to deprive women of the necessary definite authority for decision-making in relation to their children post-separation.And this reflects a political and legal disregard for the realities of women's lives.
Women's interests and concerns, as the ongoing primary caregivers to the children, have been made invisible.Women with residence of their children have the primary care of them and responsibility in relation to them but, unless they take additional legal steps, do not have the primary say in issues to do with raising them.Women are denied the clear enunciation of authority that should accompany the responsibility they have in being the continuing primary caregivers.

Making Women More Visible in Child-Related Disputes
How then can women's interests and issues be made more visible in the law of postseparation care of children?
In terms of the parental responsibility issue, under the current equality-based regime the safest strategy would seem to be to ensure that women seek extremely detailed parenting agreements or specific issues orders that ensure they have the necessary authority to correspond with the level of responsibility they have for the children.
In broader terms, however, what we need are post-separation children's provisions that send a positive, clear and unambiguous message to society that the legal system values and acknowledges the child-care work that women do.
An initial criticism of any post-separation child-care rule developed with women's issues and interests in mind, however, is certainly to be that its central focus is not the best interests of the children.This is not the case.Rather, research such as that of John Bowlby, can be used to show that where the interests of the primary care-giver are protected, the best interests of the children will consequently follow. 34at then are some of the alternative strategies for making women and their interests more visible in the context of family law child-related disputes?
It is certainly true that, from a practical perspective, women had a comparatively clearer and more certain position under the old concepts of custody and guardianship.That is, once custody had been awarded to a mother there was no need to seek additional orders to clarify what her decision-making abilities in relation to the children were.A mother with custody had the necessary authority to make decisions about their daily care and control.It is also true that prior to 1979 mothers benefitted in practical terms as a result of the paternalistic operation of the mother principle. 35verting to the mother principle would not, however, be a progressive step for mothers.This is despite the more obvious benefits of such a principle such as more appropriately acknowledging and valuing a mother's work in the primary care-taking tasks of childrearing. 36It also allowed mothers relative certainty in knowing that as primary caregivers and decision-makers in relation to their children pre-separation, they would usually also be the primary caregivers and decision-makers post-separation.
As Martha Fineman has said: The old rules have become labeled as impermissible sexist manifestations of a paternalistic system which should be purged in the interests of equality and justice.But, in fact, these old rules were more than simpleminded sexist manifestations.They also paralleled fairly well the situation that existed in most families with regard to which parent assumed primary care for the children. 37e fact is that these old rules still parallel the situation that exists in most families today.
There are many pitfalls to gendered presumptions such as the mother principle; and the more valid aspects of its practical operation are negated by its restrictive philosophical assumptions.For example, the principle is limited to valuing the position of women in the private realm of the home.In responding to the reality of women's child-care work, it fails to acknowledge the reality of the broader position of women in society.
The primary caretaker presumption, on the other hand, which in children's disputes provides a presumptive advantage to the person who has been the primary care-giver to the children, avoids these false assumptions about women, and a number of feminist commentators support it. 38There are many benefits to the primary caretaker rule," and, again, as Martha Fineman says: (t)he rule may currently operate to the advantage of mothers, but, if we value nurturing behaviour, then rewarding those who nurture seems only fair.... Men who choose not to devote their time and attention to the children during the marriage but wish to care for them after the marriage ends can bargain against the mother's entitlement as primary caretaker by making financial or emotional concessions at (separation) 40 .This presumption still fails, however, to address the issue overtly.Its inference is that child-care work is gender-neutral work.Legally, it still pretends that mothers and fathers are equal whilst practically allowing mothers an uppcrhand.Realistically, however, it is to be considered a vast improvement on the current children's provisions, and should be strongly advocated.

Conclusion
The application of abstract "supemorms" such as "equality" or "justice", 41 to the very real and difficult situation in which women find themselves caring for their children postseparation has resulted in provisions which negate the mother-role, and which perpetuate male power and control within the family.The current laws ignore the social, emotional, and financial differences between the lives of men and women.In making parents equal, they have made the issues and interests of women invisible.The laws rely largely on the superficial appeal of the symbols and language of the "equality revolution", and on idealistic notions of the family, 42 and have no regard for the stark reality beyond the discourse; namely that women and children continue to suffer after separation. 4338 Ibid at 181.K Sandberg 'Best Interests and Justice' in C Smart and S Sevenhuijsen (eds) Child Custody and the Politics of Gender (Routlcdge, London, 1989) at 104.The 'primary caretaker preference' has been adopted in a number of jurisdictions in the USA.For example, in West Virginia in the USA the primary caretaker presumption operates until children are 6 years of age after which the presumption still lies but can be rebutted by the child's own preferences.See R Neely The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed' (1984) 3 Yale Law and Policy Review 168.Minnesota also adopted the primary caretaker rule.The reasoning behind the primary caretaker preference is that it recognises the importance of the stability of the child's relationship to its primary caretaker in serving the child's best interests; that is, it protects the child's most vital parent-child relationship, it avoids error, litigation and abusive threats of litigation, and it is in fact compatible with gender neutrality and the interests of the child: G Crippen 'Stumbling Beyond the Best Interests of the Child: Re-Examining Child Custody Standard Setting in the Wake of Minnesota's Four Year Experiment with the Primary Caretaker Preference' (1990) 75 Minnesota Law Review All at 440. 39 For example, it recognises and values past caretaking behaviour, recognises that no expert can accurately predict the future best-interests of children, it focuses on past proven behaviours rather than on speculation about future possible behaviours, it removes speculation about the quality or extent of bonding between parents and children, it is particularly suitable to legal analysis and application because of its focus on past fact-finding, and it also allows parents to clearly predict who might be successful in legal proceedings: Fineman supra n 3 at 183. 40 Fineman supra n 3 at 183.She adds: "In cases in which both parents acted as true primary caretakers, I predict that few custody battles would ensue and the cooperative patterns concerning the children established during the marriage would continue." 41Fineman supra n 3 at 8. 42 Behrens supra n 14 at 215. 43 Fineman supra n 3 at 7.

4Fineman
My thoughts in this area have been influenced by reading the work of the US feminist legal theoristMartha Fineman, supra n 3, who has written of the inequities for women arising out of equality based reforms to Family Law in the United.Whilst the specific issues faced in the US are different to those that apply in Australia, the same critique has a strong application to the policy behind the reforms.5 example, R Graycar 'Equal Rights versus Fathers' Rights: The Child Custody Debate in Australia' in C Smart and S Sevenhuijsen Child Custody and the Politics of Gender (Routledge, London, 1989) at 158.See also M Kaye and J Tolmie 'Fathers' Rights Groups in Australia and their Engagement with Issues in Family Law' (1998) 12 Australian Journal of Family Law 19, M Kaye and J Tolmie 'Discoursing Dads: The Rhetorical Devices of Fathers' Rights Groups' (1998) 22 Melbourne University Law Review 162, and R Kaspiew 'Equal Parenting or the Effacement of Mothers?: B and B and the Family Law Reform Act 1995 (Cth)' (1998) 12 Australian Journal of Family Law 69 at 71 and references at footnotes 13, 14 and 25.The Family Law Council's Report on parenting made a significant impact on the direction of the reforms: Family Law Council Patterns of Parenting (AGPS, Canberra, April 1992).

1R
See, for example, Behrens supra n 14, and Nygh supra n 15. 19 See, for example, an acknowledgment of this practice by the Australian Law Reform Commission in its report Equality Before the Law: Justice for Women Report No69, Part 1 (AGPS, Canberra, 1994) at, for example, 169.The Women's Legal Service, Brisbane also discussed this issue in its Submission to the Family Law Council's Enquiry on Violence and the Family Law Act, November 1995. 20Rhoades et al confirm that there has been a steady increase in litigation under the current provisions and that this litigation is instigated in a majority of cases by non-resident fathers, supra n 11 Ch 3 at 2-3. 21See, for example, Funder et al supra n 14 and McDonald (ed) supra n 14. 22 Women's Legal Service, Brisbane statistics and feedback provided in monthly staff reports to management committee -1998. 23See for example, Nygh supra n 15 and J Behrens supra n 14 at 214. 24 See In B and B: Family Law Reform Act 1995 21 Fam LR 676 at 9.27-9.30and Vlug v Poulos (Appeal No EA 94 of 1996 No.SY 8205 of 1994) at 9-11.In Vlug v Poulos which was handed down after In B and B: Family Law Reform Act 1995, the joint judgment of Finn, Kay and Moore JJ states at 10 "But the question of whether (at least in the absence of an express order) parents may exercise parental responsibility independently of each other or whether they must do so jointly is not made clear by the amended legislation". 25Second Reading Speech of the Family Law Reform Bill, 1994, Parliamentary Debates, 8 November 1994 at 2759.Commentators such as Juliet Behrens agree that as a result of the underlying principles of this Division of the Family Law Act, this interpretation logically follows from the drafting, notwithstanding that the Act does not introduce a presumption of joint parenting post-separation: Behrens, supra n 14 at 214.See also Harrison and Graycar's finding from a survey of practitioners that when explaining the new concept of "parental responsibility" practitioners are relying heavily on words such as "equal", "shared" or cooperative", supra n 14 at 335. 26 See the judgment above n 25 at 10-11.
example, the research of John Bowlby: J Bowlby Child Care and the Growth of Love (2 edn, based by permission of the World Health Organisation on the Report Maternal Care and Mental Health Penguin Books, London, 1965).This research, with its emphasis on the importance of the mother as primary care-giver has been said only to have served the interests of patriarchal society by relegating women to the private sphere.Focussing on the research's emphasis of the value of mothers' work could be one way in which to use it more positively for women.

F Steel and K Gilson 'Equality Issues in Family Law: A Discussion Paper' in K Busby, L Fainstein and H Penner (eds) Equality Issues in Family Law: Considerations for Test Case Litigation (1990) at 24-25. 10 See Dickey's acknowledgment of this in A Dickey Family Law (3 rd edn, LBC Information Services
The Royal Commission on Human Relationships concluded that the principal purpose of the family is to provide for the care and upbringing of children: Royal Commission on Human Relationships Final Report Volume 4 (AGPS, Canberra, 1977) at 3. It stated further that "[a]ll children need adults to nurture them, to give them love and security, stimulation and the chance to grow."Ibid at 1. 12 Note, for example, that "[t]he quality of childhood experience, when learning is most rapid, (is) seen as crucial to later adult ability in personal relationships.":Royal Commission on Human Relationships, Final Report Volume 2 (AGPS, Canberra, 1977) at 6.
MFA Otlowski Family Law in Australia (5 th edn, Butterworths, Sydney, 1997) at 398.In the interim report on the research by Helen Rhoades, Reg Graycar and Margaret Harrison into the impact of the Family Law Reform Act 1995 they say with regard to the issue of responsibility for children that "... nothing much has changed -the division of responsibility for children appears to remain gendered, with mothers still tending to be the primary resident parent and still doing much of the decision-making and 'the hard work'."H Rhoades, R Graycar, M Harrison The Family Law Reform Act 1995: Can changing legislation change legal culture, legal practice and community expectations?Interim Report, April 1999, <http://www.familycourt.gov.au/papers/html/bodyJlachapter3a.html> at 1. 11 13 See, for example, J Behrens 'Shared Parenting: Possibilities ...And Realities' (1996) 21(5) Alternative Law Journal 213; K Funder, M Harrison and R Weston Settling Down: Pathways of Parents After Divorce (AIFS, Melbourne, 1993); P McDonald (ed) Settling Up: Property and Income Distribution On Divorce in Australia (Prentice-Hall of Australia, Sydney); and M Harrison and R Graycar 'The Family Law Reform Act: Metamorphosis or More of the Same?' (1997) 11 Australian Journal of Family Law 327.