¹ See Richard, Collier and Sally, Sheldon (eds), Fathers’ Rights Activism and Law Reform in Comparative Perspective (2006)Google Scholar.

² See in relation to England, Stephen, Gilmore, ‘Contact/Shared Residence and Child Well-Being: Research Evidence and its Implications for Legal Decision-Making’ (2006) 20 International Journal of Law, Policy and the Family 344Google Scholar; and in relation to Canada, Susan, Boyd, ‘Walking the Line: Canada’s Responses to Child Custody Law Reform Discourses’ (2003) 21 Canadian Family Law Quarterly 397Google Scholar.

³ The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (‘Shared Parental Responsibility Act’) came into effect on 1 July 2006.

⁴ Family Law Act 1975 (Cth), s 61DA (‘Family Law Act’).

⁵ Australian Government, Family Law Amendment (Shared Responsibility) Act 2006, (2006) Attorney-General’s Department <http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyLawAmendment(SharedResponsibility)Act2006> at 24 November 2008. For a discussion of the policy goals underpinning the reforms, see Richard, Chisholm, ‘Making it Work: The Family Law Amendment (Shared Parental Responsibility) Act 2006’ (2007) 21 Australian Journal of Family Law 143Google Scholar.

⁶ See, eg, Zoe, Rathus, ‘Shifting the Gaze: Will Past Violence be Silenced by a Further Shift of the Gaze to the Future under the New Family Law System?’ (2007) 21 Australian Journal of Family Law 87Google Scholar; Tracey, de Simone, ‘The Friendly Parent Provisions in Australian Family Law – How Friendly Will You Need to Be?’ (2008) 22 Australian Journal of Family Law 56Google Scholar.

⁷ Jennifer McIntosh and Caroline Long, The Child Responsive Program Operating with the Less Adversarial Trial: A Follow Up Study of Parent and Child Outcomes, Report to the Family Court of Australia (2007); Jennifer, McIntosh and Richard, Chisholm, ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’ (2007) 20(1) Australian Family Lawyer 1Google Scholar.

⁸ This refers to arrangements in which the child spends at least 5 nights per fortnight in each parent’s home.

⁹ McIntosh and Chisholm, above n 7.

¹⁰ McIntosh and Long, The Child Responsive Program, above n 7, 18; McIntosh and Chisholm, above n 7, 8; Max, Wright, ‘Best Interests, Conflict and Harm – A Response to Chisholm and Parkinson’ (2008) 22 Australian Journal of Family Law 72Google Scholar.

¹¹ Jill Burrett and Michael Green, The Problem with Caution: Comments on the McIntosh/Chisholm Study (2008) Dads in Distress 2-3 <http://www.dadsindistress.asn.au/downloads/The%20Problem%20with%20Caution%20Compendium.pdf> at 24 November 2008.

¹² Ibid 5.

¹³ See Helen Rhoades, ‘Yearning for Law: Fathers’ Groups and Family Law Reform in Australia’ in Sheldon and Collier (eds), above n 1, 125.

¹⁴ Standing Committee on Family and Community Affairs, Commonwealth Parliament, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003) (‘Every Picture report’). Note that the legislation departs from the report’s recommendations in a number of important ways, which are discussed in Part 5.

¹⁵ For a discussion of this inquiry, see Helen, Rhoades and Susan, Boyd, ‘Reforming Custody Laws: A Comparative Study’ (2004) 18 International Journal of Law, Policy and the Family 119Google Scholar.

¹⁶ Chisholm, above n 5. For descriptions and critiques of the 1995 reforms, see Richard, Chisholm, ‘Assessing the Impact of the Family Law Reform Act 1995’ (1996) 10 Australian Journal of Family Law 177Google Scholar; Richard, Ingleby, ‘The Family Law Reform Act – A Practitioner’s Perspective’ (1996) 10 Australian Journal of Family Law 48Google Scholar; John, Dewar and Stephen, Parker, ‘The Impact of the New Part VII Family Law Act 1975’ (1999) 13 Australian Journal of Family Law 96Google Scholar.

¹⁷ Every Picture report, above n 14, [2.4], [2.39].

¹⁸ Ibid [2.38], [2.43].

¹⁹ Family Law Act 1975 (Cth) ss 61DA(1), 65DAC.

²⁰ Family Law Act 1975 (Cth) s 61DA(2).

²¹ Family Law Act 1975 (Cth) s 61DA(4).

²² Family Law Act 1975 (Cth) s 65DAA; Goode v Goode (2006) 36 Fam LR 422 (‘Goode’).

²³ ‘Reasonably practicable’ is defined in s 65DAA(5).

²⁴ Family Law Act 1975 (Cth) s 65DAA(2).

²⁵ Family Law Act 1975 (Cth) s 65DAA(3).

²⁶ Family Law Act 1975 (Cth) s 63DA(2).

²⁷ Family Law Act 1975 (Cth) s 60CC(2).

²⁸ These are set out in Family Law Act 1975 (Cth) s 60CC(3).

²⁹ For discussion of the ‘paramountcy principle’, see John, Eekelaar, ‘Beyond the Welfare Principle’ (2002) 14 Child and Family Law Quarterly 237Google Scholar; Jonathan, Herring, ‘Farewell Welfare?’ (2005) 27 Journal of Social Welfare and Family Law 159Google Scholar; Richard, Chisholm, ‘“The Paramount Consideration“: Children’s Interests in Family Law’ (2002) 16 Australian Journal of Family Law 87Google Scholar.

³⁰ Family Law Act 1975 (Cth) s 60CA.

³¹ Every Picture report, above n 14, [2.8].

³² Goode (2006) 36 Fam LR 422, 443 (emphasis added).

³³ For a summary of the two studies, see McIntosh and Chisholm, above n 7.

³⁴ See Australian Institute of Family Studies, Parent Child Contact and Post-Separation Parenting Arrangements, Research Report No 9 (2004).

³⁵ Fewer than four per cent of parents registered with the Child Support Agency in 2002 were deemed to have a shared parenting arrangement: Bruce Smyth, Catherine Caruana, and Anna Ferro (2003), ‘Some Whens, Hows and Whys of Shared Care: What Separated Parents who spend Equal Time with their Children say about Shared Parenting’ (Paper presented at the Australian Social Policy Conference, Sydney, 9–11 July 2003) 1.

³⁶ Jennifer, McIntosh and Caroline, Long, Children Beyond Dispute: A Prospective Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution (2006) 21Google Scholar.

³⁷ Smyth, above n 34; Smyth, Caruana, and Ferro, above n 35.

³⁸ Approximately 30 per cent of the shared care arrangements in the second study were judicially determined: McIntosh and Long, The Child Responsive Program, above n 7, 8.

³⁹ Ibid.

⁴⁰ McIntosh and Long, Children Beyond Dispute, above n 36.

⁴¹ McIntosh and Long, The Child Responsive Program, above n 7, 18; McIntosh and Chisholm, above n 7, 4.

⁴² McIntosh and Chisholm, above n 7, 5.

⁴³ McIntosh and Long, The Child Responsive Program, above n 7.

⁴⁴ McIntosh and Chisholm, above n 7.

⁴⁵ McIntosh and Long, The Child Responsive Program, above n 7, 10.

⁴⁶ Note however that one of these authors, Professor Chisholm, has more recently indicated that legislative reform of Part VII may be necessary: see Richard, Chisholm, ‘The Harmful Impact of Parental Conflict on Children (And the Harmful Impact of Legislative Complexity on People Trying to Help Children): A Brief Reply to Max Wright’ (2008) 22 Australian Journal of Family Law 152, 153Google Scholar.

⁴⁷ McIntosh and Long, The Child Responsive Program, above n 7, 18.

⁴⁸ McIntosh and Chisholm, above n 7, 10.

⁴⁹ Ibid 4.

⁵⁰ Ibid 8.

⁵¹ Wright, above n 10. Relationships Australia, established in 1984, is Australia’s largest and most well-known community-based family relationships organisation. It provides counselling and mediation for couples in conflict over parenting and financial matters.

⁵² Family Law Act 1975 (Cth), s 60CC(2).

⁵³ Wright, above n 10, 76–7.

⁵⁴ Helen Rhoades et al, Enhancing Inter-Professional Relationships in a Changing Family Law System: Final Report (2008) <http://www.law.unimelb.edu.au/files/Inter-ProfessionalRelationshipsStudyFinalReport.pdf>.

⁵⁵ Family dispute resolution is defined as a process in which a practitioner who is ‘independent of all of the parties’ involved in the process ‘helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other’: Family Law Act 1975 (Cth) s 10F. The main form of family dispute resolution is mediation.

⁵⁶ Rhoades et al, above n 54, 29.

⁵⁷ Note that some commentators in other areas of law have also suggested that lawyers should adopt a more holistic approach to advocacy, with a focus on meeting the client’s ‘human needs’ and not just their ‘legal needs’: see, eg, Robin, Steinberg, ‘Beyond Lawyering: How Holistic Representation makes for Good Policy, Better Lawyers and More Satisfied Clients’ (2006) 30 NYU Review of Law and Social Change 625Google Scholar. See also Katherine, Wright, ‘The Role of Solicitors in Divorce: A Note of Caution’ (2007) 19 Child and Family Law Quarterly 481Google Scholar, whose research suggests that many English family lawyers adopt a ‘neutral’ approach to acting for family law clients.

⁵⁸ Helen Rhoades et al, Working on their Relationships: A Study of Inter-Professional Practices in a Changing Family Law System, Research Report 1 (2006), 130.

⁵⁹ Burrett and Green, above n 11.

⁶⁰ However, some members of the fathers’ lobby, including the President of the Lone Fathers Association, Barry Williams, have rejected the results: see ABC Television, ‘Experts Warn Against Shared Parenting Settlements’, The 7.30 Report, 3 June 2008, <http://www.abc.net.au/7.30/content/2007/s2264144.htm> at 24 November 2008.

⁶¹ Burrett and Green, above n 11, 1.

⁶² Ibid 2-3.

⁶³ Ibid 5.

⁶⁴ Ibid (emphasis in original).

⁶⁵ McIntosh and Long, The Child Responsive Program, above n 7, 19.

⁶⁶ Burrett and Green, above n 11, 4–5 (emphasis in original).

⁶⁷ Ibid 7.

⁶⁸ Rhoades and Boyd, above n 15, 138.

⁶⁹ Rhoades et al, above n 54, v.

⁷⁰ Note also that a judge may consider ‘any other fact or circumstance that the court thinks is relevant’ under Family Law Act 1975 (Cth) s 60CC(3)(m).

⁷¹ For a description of several of these programs, see Rhoades et al, above n 54, 14–16.

⁷² See Chisholm, ‘Making it Work’, above n 16; Patrick, Parkinson, ‘The Values of Parliament and the Best Interests of Children – A Response to Professor Chisholm’ (2007) 21 Australian Journal of Family Law 213Google Scholar; Richard, Chisholm, ‘A Brief Reply to Professor Parkinson’ (2007) 21 Australian Journal of Family Law 229Google Scholar.

⁷³ Parkinson, above n 72, 214, 227.

⁷⁴ Ibid 218–19.

⁷⁵ Ibid, 214.

⁷⁶ Wright, above n 10, 76–7.

⁷⁷ Family Law Act 1975 (Cth) s 60CC(2)(b).

⁷⁸ Wright, above n 10, 74–5. Note that Chisholm has subsequently responded to Wright’s critique: see Chisholm, ‘The Harmful Impact of Parental Conflict on Children’, above n 46.

⁷⁹ See Rhoades and Boyd, above n 15; Rhoades, above n 13.

⁸⁰ See, eg, Jennifer, McIntosh, ‘Enduring Conflict in Parental Separation: Pathways of Impact on Child Development’ (2003) 9 Journal of Family Studies 63Google Scholar.

⁸¹ Every Picture report, above n 14, [2.41].

⁸² Ibid, [2.6].

⁸³ Ibid, [2.83]. Note that this recommendation also included an exception for cases involving ‘substance abuse’ by a parent.

⁸⁴ Australian Government, A New Family Law System: Government Response to Every Picture Tells a Story (2005) 5. <http://www.aph.gov.au/House/committee/fca/childcustody/govtresponse.pdf> at 24 November 2008.

⁸⁵ Ibid 5-6.

⁸⁶ Ibid, 6.

⁸⁷ See Patrick, Parkinson, ‘Decision-Making About the Best Interests of the Child: The Impact of the Two Tiers’ (2006) 20 Australian Journal of Family Law 179Google Scholar.

⁸⁸ Parkinson, ‘The Values of Parliament’, above n 72.

⁸⁹ See, eg, T v N (Shared Residence) (2004) 31 Fam LR 281, where the court held that a shared parenting arrangement was not in the children’s best interests and likely to be psychologically damaging given the parents’ evident hostility and inability to communicate.

⁹⁰ See, eg, Rae, Kaspiew, ‘Violence in contested children’s cases: An empirical exploration’ (2005) 19 Australian Journal of Family Law 112Google Scholar, 123.

⁹¹ Lawrie Moloney, ‘Violence Allegations in Parenting Disputes: Reflections on court-based decision making before and after the 2006 Australian Family Law Reforms’ (Paper presented at the Victoria Legal Aid Family Law Conference, Melbourne, 24 July 2008).

⁹² Lawrie, Moloney et al, ‘Allegations of Family Violence and Child Abuse in Family Law Proceedings: A Pre-Reform Empirical Snapshot’ (2007) 21 Australian Journal of Family Law 252Google Scholar, 277. For an example of the kind of corroborative evidence required, see Noor & Nabil [2007] FamCA 688.

⁹³ Family dispute resolution practitioners are required to be ‘independent of all of the parties involved in the process’: Family Law Act 1975 (Cth) s 10F. Regarding the requirement of impartiality in mediation, see Hilary, Astor, ‘Rethinking Neutrality: A Theory to Inform Practice – Part I’ (2000) 11 Australian Dispute Resolution Journal 73Google Scholar; Alison, Taylor, ‘Concepts of Neutrality in Family Mediation: Contexts, Ethics, Influence and Transformative Process’ (1997) 14 Mediation Quarterly 215Google Scholar.

⁹⁴ Clarkson v Clarkson (1972) 19 FLR 112.

⁹⁵ Family Law Council, Best Practice Guidelines for Lawyers doing Family Law Work (2004), Part 6 [1.4].

⁹⁶ See Family Law Act 1975 (Cth), s 68L regarding the power to order a child be separately represented. An Independent Children’s Lawyer does not ‘act for’ the child in the same way that a lawyer acts for an adult client. Their role is to assist the Court to understand the child’s situation: see Family Court of Australia, Guidelines for the Independent Children’s Lawyers, <http://www.nla.aust.net.au/res/File/PDFs/ICL%20guidelines-6-12-07.pdf> at 24 November 2008.

⁹⁷ Law Council of Australia, Model Rules of Professional Conduct and Practice (2002), Rule 12.1.

⁹⁸ Family Law Act 1975 (Cth) s 60CA.

⁹⁹ For example, Eekelaar, Maclean and Beinhart’s 2002 study of English family lawyers revealed practitioners were striving to act on their clients’ instructions while simultaneously directing them towards arrangements that reflected the relevant legal understanding of the welfare of the child: John, Eekelaar, Mavis, Maclean and Sarah, Beinart, Family Lawyers: The Divorce Work of Solicitors (2000), 76, 103Google Scholar.

¹⁰⁰ Note that the Family Law Council’s Best Practice Guidelines suggest that lawyers ‘should discuss with clients the arrangements being proposed for children to ensure that proper arrangements have been made for their welfare’: see Family Law Council, above n 95, Part 5, [3.2].

¹⁰¹ Law Council of Australia, above n 97, Rule 12.1.

¹⁰² Rhoades et al, above n 54, 25.

¹⁰³ Ibid; Rhoades et al, above n 58, 74-5.

¹⁰⁴ Rhoades et al, above n 58, 75-6.

¹⁰⁵ Alison, Diduck, Law’s Families (2003) 67Google Scholar.

¹⁰⁶ See Christine, Piper, ‘How do you Define a Family Lawyer?’ (1999) 19 Legal Studies 93, 105-109Google Scholar.

¹⁰⁷ For example, practising lawyers in Victoria are required to undertake 10 hours of compulsory professional development each year: Law Institute of Victoria, Continuing Professional Development Rules (2008)Google Scholar.

¹⁰⁸ Indeed, some family law scholars argue that the system-like nature of law means that it inevitably oversimplifies and distorts information from other disciplines, such as child psychology. See, eg, Michael, King and Christine, Piper, How the Law Thinks about Children (1995), 136-38Google Scholar.

¹⁰⁹ Seaford and Seaford [2007] FamCA 1460 (‘Seaford’).

¹¹⁰ Ibid [72].

¹¹¹ Ibid [73].

¹¹² Ibid [86].

¹¹³ Ibid [29], [87].

¹¹⁴ Ibid [92].

¹¹⁵ Ibid [87].

¹¹⁶ Ibid [89].

¹¹⁷ Ibid [74].

¹¹⁸ Ibid [113].

¹¹⁹ Ibid [86], [22].

¹²⁰ Ibid [119]. An exception to the shared parental responsibility was made to allow the father to enroll the child in school. The father also agreed to be responsible for payment of the child’s school fees.

¹²¹ Ibid [123], [128].

¹²² Ibid [128].

¹²³ Note that there is no indication in the judgment that this was the case.

¹²⁴ Seaford and Seaford [2007] FamCA 1460, [22].

¹²⁵ Family Consultants are Family Court staff whose main role is to ascertain the views of the child and other family members and provide an opinion report on the child’s best interests to the court: see Family Law Act 1975 (Cth), s 62G.

¹²⁶ Seaford and Seaford [2007] FamCA 1460, [34].

¹²⁷ McIntosh and Long, above n 7.

¹²⁸ See Goode (2006) 36 Fam LR 422, 441.

¹²⁹ U v U (2002) 29 Fam LR 74.

¹³⁰ I am grateful to Professor Chisholm for pointing out this argument to me.

¹³¹ McIntosh and Chisholm, above n 7, 2.

¹³² For a description of these services, see Lawrie, Moloney and Jennifer, McIntosh, ‘Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions’ (2004) 10 Journal of Family Studies 71Google Scholar.

¹³³ Child inclusive mediation typically involves a child consultant interviewing the children about their experiences and perceptions of their parents’ separation, and feeding this information back to the parents to assist them in their negotiations: see Anthony, Grimes and Jennifer, McIntosh ‘Emerging Practice Issues in Child-Inclusive Divorce Mediation’ (2004) 10 Journal of Family Studies 113Google Scholar.

¹³⁴ For a description and critique of the pilot for this program, see Rosemary, Hunter, ‘Child-related proceedings under Part VII Div 12A of the Family Law Act: What the Children’s Cases Pilot Program can and can’t tell us’ (2006) 20 Australian Journal of Family Law 227Google Scholar.

¹³⁵ Liz Trinder and Joanne Kellett, The longer-term outcomes of in-court conciliation, Research Series 15/07 (2007).

¹³⁶ Ibid ii.

¹³⁷ Ibid Chapter 7. See also UK research on children’s experiences of post-separation shared time arrangements by Carol Smart and Bren Neale, which found that for many children, such arrangements became ‘increasingly unsatisfactory over time’: Bren, Neale, Jennifer, Flowerdew, and Carol, Smart, ‘Drifting Towards Shared Residence?’ 33 (2003) Fam Law 904, 905Google Scholar.

¹³⁸ Trinder and Kellett, above n 135, Chapter 5.

¹³⁹ Michael, D Yapko, Breaking the Patterns of Depression (1997)Google Scholar.

¹⁴⁰ The Independent Children’s Lawyer in the case proposed an order requiring the parents to attend a family dispute resolution program if they could not agree on decisions regarding the child. However the judge did not make this order.

¹⁴¹ See Seaford [2007] FamCA 1460, [43], [63], [101], [116].

¹⁴² Family Law Regulations 1984 (Cth), Reg. 62(2).

¹⁴³ Family Law Regulations 1984 (Cth), Reg. 62(4). In this circumstance, the family dispute resolution provider would issue a certificate under Family Law Act 1975 (Cth), s 60I(8)(aa) or s 60I(8)(d).

¹⁴⁴ See Carol, Smart, Personal Life (2007), 190Google Scholar.

¹⁴⁵ John, Eekelaar, Family Life and Personal Life (2006), 126–27Google Scholar.

¹⁴⁶ Every Picture report, above n 14, [2.39], [2.4].

¹⁴⁷ Ibid [2.44].

¹⁴⁸ See Carl, E Schneider, ‘The Channelling Function in Family Law’ (1992) 20 Hofstra Law Review 495, 498Google Scholar.

¹⁴⁹ For an argument about the role of legislative direction in this field, see Juliet, Behrens, ‘The form and substance of Australian legislation on parenting orders: a case for the principles of care and diversity and presumptions based on them’ (2002) 24 Journal of Social Welfare and Family Law 401Google Scholar.

¹⁵⁰ See, eg, Chisholm, Assessing the Impact of the Family Law Reform Act, above n 16, 194–95.

¹⁵¹ Daphna, Hacker, ‘Motherhood, Fatherhood and Law: Child Custody and Visitation in Israel’ (2005) 14 Social and Legal Studies 409Google Scholar; Carol, Smart and Bren, Neale, ‘Arguments Against Virtue – Must Contact Be Enforced?’ [1997] Family Law 332Google Scholar; Dewar and Parker, above n 16; Helen, Rhoades, Regina, Graycar and Margaret, Harrison, The Family Law Reform Act 1995: The First Three Years (2000)Google Scholar.

¹⁵² See, John, Dewar, ‘Reducing Discretion in Family Law’ (1997) 11 Australian Journal of Family Law 309Google Scholar.

¹⁵³ Attorney-General’s Department, Provision of Research into Shared Care Parenting Arrangements since the 2006 Family Law Reforms (2008) Austender <https://www.tenders.gov.au/?event=public.atm.show&ATMUUID=991A9CCA-96D5-F51C-65679E5208DA2DA4> at 9 December 2008.

¹⁵⁴ See above n 60.

¹⁵⁵ McIntosh and Long, The Child Responsive Program, above n 7, 19.

¹⁵⁶ See for example, Paul, R Amato and Joan, G Gilbreth, ‘Nonresident fathers and children’s well-being: a meta-analysis’ (1999) 61 Journal of Marriage and the Family 557Google Scholar; Carol, Smart, ‘From Children’s Shoes to Children’s Voices’ (2002) 40 Family Court Review 307Google Scholar; Joan, B Kelly, ‘Changing Perspectives on Children’s Adjustment Following Divorce: A View from the United States’ (2003) 10 Childhood 237Google Scholar.

¹⁵⁷ Richard Chisholm, ‘Shared Care and Children’s Best Interests: Working with the Amendments of 2006’, (Paper presented at the Legal Aid NSW Family Law Conference, Sydney, 22 August 2008) 8.

¹⁵⁸ John, Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 Modern Law Review 467, 479Google Scholar.

¹⁵⁹ Herring, above n 29, 167.

¹⁶⁰ Neale, Flowerdew, and Smart, above n 137, 905.

¹⁶¹ See Rhoades, above n 13, 135–136.