49 Pt VII of the Family Law Act 1975 (as amended by the Family Law Reform Act 1995) has changed much of the terminology (and substance) of parenting orders. In this paper we have tended to use the language of "custody" and "access" because that still tends to be the common parlance and the language used by most of the groups. Additionally, many of the groups, submissions upon which we have relied were written prior to the recent amendment.

50 When commencing this research we also expected to find that each of the groups was a cohesive entity with uniform policies or approaches. This was true of some of the groups, but not the case in respect of others. As we have mentioned, some presented different perspectives at different points in time, or depending on which spokesperson and branch was talking. An example of a general difference in tone and approach emerges within DADs between the NSW branch and the QId branch in their respective submissions to the Joint Select Committee on Certain Family Law Issues: Inquiry into the Operation and Effectiveness of the Child Support Scheme (hereafter, JSC CFLI: CSS). The NSW branch states that "when the Child Support Scheme was introduced into Australia the basic principle of the scheme was a courageous and just move by the Australian government. It was to acknowledge that some non-custodial parents were not accepting their share of the children�s upbringing after separation from the mother" NSW DADs then goes on to say that nonetheless "the Child Support Scheme has many anomalies which are inflexible and do not meet the needs of children or their parents". This can be contrasted with the submission of the Qld branch of DADs to the effect that �there is a basic human element that the Act ignores. With its Marxist philosophical underpinning the Act fails to take account of people's individual situations, hopes, aspirations. and abilities. It lumps all into one solution, which is a gross disrespect for human rights. Take away a persons hope, their future, and they will give in and die."

51 Men's Confraternity is an example of a group that presents a view of reality that is more extreme than most of the other groups, while the Family Law Injustice Group Helping Together (FLIGHT) is an example of a group taking a more moderate approach.

1. The erosion of the family unit

Many fathers' rights groups are concerned that the family unit is being attacked and undermined. For example, Men's Confraternity is worried about the "continual attacks by feminists at [sic] the family unit, which have created a society of single parent families, made motherhood a dirty word, and also put the job of housewife as the lowest form of human endeavour".⁵² It is clear that the family unit,⁵³ whose demise these groups are mourning, is the traditional nuclear family unit headed by the father:⁵⁴

Some in society seem to be intent on destroying the time-honoured role of the family, with particular emphasis given to the removal of the father. Unfortunately they have been amply supported by government policies... government has now, by its policies taken over the role of men and is now acting as de facto husband in relation to providing support for women and as defacto father in supporting children of the relationship. Again providing a suspicion that men have become the disposable sex, unless it is to provide income support via property settlement and ongoing maintenance.⁵⁵

During our research we were struck by the antipathy expressed by many fathers' rights groups not only towards single motherhood,⁵⁶ but also "alternative" family forms particularly lesbian motherhood.⁵⁷ If we were to attempt to understand this antipathy as other than mere bigotry, perhaps the concern that men are seen as the disposable sex might partially explain a distrust of families "in which an appropriate paternal masculinity is... absent".⁵⁸

A common claim in the fathers' rights literature is that separation or family breakdown leads to "tragic consequences".⁵⁹ For the Child Support Action Group, these include "domestic violence, suicides, alcohol, drug and sexual abuse and long-term unemployment".⁶⁰ Men's Rights Agency submits that:

Children of separated parents are more likely to not perform well at school, are more likely to be in trouble with the police, less likely to go on to tertiary education, more likely to have trouble with their own relationships resulting in separation and divorce and the girls are more likely to have early pregnancies.⁶¹

If the parents do separate, it is argued, then continuing and frequent contact with the father is essential because children need fathers as role models.⁶² For example, Men's Rights Agency argues that the "standard" contact arrangements of "twenty six times a year, and if lucky half the school holidays is not enough time... for the children to be able to experience and learn from the role modelling their father has the opportunity to provide". 'Therefore, it is:

[n]o wonder children are growing up with a distorted view of their place in society, leading to the huge influx in juvenile crime, both boys and girls, youth suicide, homeless youth, and an increasing drug culture amongst the young.⁶³

There is certainly ample support in the scholarly literature for proposition that divorce has a negative short-term impact on the children of a marriage.⁶⁴ However it is not at all clear from the studies that divorce necessarily has the harmful long-term effects the groups claim. Australian research by Paul Amato, for example, suggests that the competence of children in single parent families in the medium to long-term is the same as children from intact families.⁶⁵ This study, and others,⁶⁶ suggest that family structures per se matter less to children's well being than other factors, such as the high levels of poverty experienced by single parent families, how much inter-parental conflict the children must witness, and how positive their relationship with the resident parent is. In comparison with the clear evidence of the importance of their relationship with the resident parent, studies looking at whether contact with non-custodial fathers is significant in terms of the children's well-being are inconclusive,⁶⁷ contrary to the assertions made by these groups.

Various features of the family law system are portrayed by fathers' rights groups as attacking the traditional family. For example, no fault divorce is seen by the Lone Fathers Association as leading to a breakdown in the traditional family because under the "no fault" divorce system:

People know that they will not be considered to be guilty of any punishable moral or legal fault if or when they casually decide to get divorced and abandon their parental contract and just as casually try some other kind of lifestyle experiment. such as "welfare recipient", "single parenthood", "lesbian/homosexual marriage� and "sex worker".⁶⁸

Spousal maintenance and child support are also frequently mentioned as destroying the family and consequently society.⁶⁹ For example, Equality for Fathers talks of the "Robin Hood" principle which permeates Australian society, and which:

states that you take from the parent who is most capable, has worked hardest, and is best able to earn the money, and give it to the parent which is least able to earn money, is in effect rewarding mediocrity, penalising the efforts of an individual to provide for himself, and destroying the very fabric of our society.⁷⁰

Another common theme in submissions is that the welfare system contributes to the erosion of the family unit because it makes it too easy for women to walk out of their marriages and become dependent on the State. Some groups, like the Family Law Reform Party, don't just argue that under the present welfare system custodial parents get the opportunity to survive independently of their marriages, but go so far as to propose that many custodial parents are better off without their partners.⁷¹ Other suggested consequences of the current welfare system are that there is no encouragement for women to develop job skills and become financially self reliant, that billions of dollars of public money is wasted,⁷² and that young women are encouraged to get pregnant in order to get the sole parent's benefit.⁷³ The Family Law Reform Group argues that women leaving their marriages in turn, leads to an increase in gays, lesbians, AIDS, murder and suicide.⁷⁴

A related critique is that made of women�s refuges which provide temporary accommodation to women:

Now lesbians are a part of life as are gay men, and I accept that. But I have seen ads for positions in women's refuges, and being a lesbian is part of the job requirement. So the government funds lesbians to run women�s groups. So when a woman leaves her husband, the woman at the refuge puts her arm around her and says, "come in darling, I can help you. I can get you money and cheap accommodation and have your telephone connected".⁷⁵

Various solutions are proffered to restrict the intrusion of the welfare system into family life. The first consists of proposals to withdraw welfare benefits from custodial mothers.⁷⁶ For example, Men's Confraternity favours the complete abolition of the sole parent pension in favour of the unemployment benefit on the basis that; "it should be established that sole parent mothers are no longer revered and protected in society and that they are expected to pull their own weight".⁷⁷

The second solution is to favour the parent who is not on welfare when making decisions about child custody. For example, the Family Law Injustice Group Helping Together⁷⁸ suggests that the parent who can work and care for the child should be favoured in custody "as a positive role model". Clearly nobody can work full time and also provide round the clock care for preschool children. what this group apparently envisions then is that the parent who is in the workforce and thus able to pay for a substitute carer should be given custody, as opposed to the parent who has sacrificed workforce opportunities to undertake the labour of caring prior to separation.

Most of the claims set out in this section are presented by the groups as self-evident. In fact, they are almost, invariably unsubstantiated and clearly comprise a highly politicised and controversial. agenda. There are also tensions within some of the material.⁷⁹ In one world portrayed by the Lone Fathers Association, women are dependent on men and the state and hence subject to extreme work disincentives.⁸⁰ However, this sits uneasily with another world it inhabits, "a world where most females participate in the paid work force".⁸¹

Equally, Men's Confraternity suggests that "[m]en should be given first consideration for custody of the children... [as] this... takes away the last remaining excuse for women not to train for proper employment."⁸² However, at the same time it is:

concerned that two out of three new jobs are for women, and with women now moving into vocations once the sole domains of men, by the turn of the century there will be more women in the work force than men. We believe that it is far more important for the country's sake that the men of this country are employed. To have millions of men idle and adrift is an invitation to disaster.

The arguments of Men's Confraternity in favour of jobs for men, combined with its proposals to cut welfare benefits to single parents, in effect reduce to one argument. That is, that women should be forced to be financially reliant on men, and that financial reliance should be linked to being contained within a traditional family unit.⁸³

52 Family Law Reform Party, Submission to Australian Law Reform Commission Reference on Matrimonial Property, Report No 39, AGPS, Canberra, 1987 (hereafter, ALRC, Matrimonial Property). The Family Law Reform Party refers to the "destruction of the family by feminists and homosexuals" (LFAA Conference, 1997). See also the Men's Rights Agency, ALRC, Children.

53 On the vexed question of what is a "family" see D Herman, "Are we Family? Lesbian Rights and Women's Liberation" (1990) 28 Osgoode Hall Law Journal 789.

54 Indeed, Barry Weedon at the LFAA Conference (1997) above n 52,says, "[t]he traditional family unit consisting of father, mother and children is currently under threat from many quarters in Australia".

55 Men's Rights Agency, (ALRC, Children).

56 Many of the critiques of sole custody could also be seen as disapproval of sole motherhood. For example LFAA posits families involving sole custody as sites of abuse (ALRC, Children).

57 This irrational fear of �alternative� family forms is illustrated by Barry Weedon (FLRP) at the LFAA Conference 1997, who argued, �...demands by lesbians and homosexual to be regarded as families have encouraged women to leave their husbands..." For an excellent discussion of the hatred of lesbian mothers see J Millbank, On Being Despised: Some Thoughts on the Issue of the Anti- Mother, Conference Paper, Court Network Conference, Melbourne, March 12 1997

58 R Collier, Masculinity, law and the Family, Routledge, London, 1995, p 202; B Simpson, P McCarthy and J Walker. Being There: Fathers After Divorce, Relate Centre for Family Studies, Newcastle Upon Tyne, 1995, p 4.

59 CSAG, NT; (JSC CFLl: CSS).

60 NT branch (JSC CFLI: CSS).

61 ALRC, Children.

62 See LFAA (ALRC, Children) which lists the consequences for children who do not have prominent masculine role models. Note the resonance of these arguments with the Family Court's reasoning in A v J (1995)19 Fam LR 260; FLC 92-619, supporting Collier's assertion that, "[i]t has been primarily through reference to their presumed utility as appropriate male 'role models'... that the law has sought to attach fathers to families". see, R Collier, "A father's �normal love'?: Masculinities, Criminology and the Family" in R Dobash et al (eds), Gender & Crime University of Wales, Cardiff, 1995, p 216.

63 Men�s Rights Agency (ALRC, Children). See also the comment of Parent Without Rights (JSC CFLI: CSS) that "if nobody acts now, very soon the numbers of homeless street kids, the numbers of young children in places like St Kilda in Melbourne and Kings Cross in Sydney, will soon quadruple". Men's Confraternity claims that "100 per cent of youths who consistently steal cars do not have a father at home. Ninety per cent of children brought before the Children's Court do not have a father": "Review of Restraining Orders", Submission to the Task Force on Family and Domestic Violence and the Ministry of Justice, Appendix C May 1995 at p 19 (hereafter Review of Restraining Orders). No sources are provided for this data.

64 For an overview of the research on this issue see J Pryor and F Seymour, "Making decisions about children after parental separation" (1996) 8 Child and Family Law Quarterly 229.

65 Children in Australian Families: The Growth of Competence, Prentice Hall, Sydney, 1987. In fact they fared slightly better in life skills. In this sense his research contradicts that of the US researchers, see J Wallerstein and J Kelly, Surviving the Breakup, Basic Books, New York, 1980; J Wallerstein and S Blakeslee, Second Chances - Men, Women and Children a Decade after Divorce, Ticknor & Fields, New York, 1989. There are numerous criticisms which have been levelled at "Wallerstein�s" research: namely, the lack of control groups, the impact that the intervention may have had on the results, and the harm focus of the studies.

66 See also R Dunlop and A Burns, "Don�t Feel the World is Caving In": Adolescents in Divorcing Families, Australian Institute of Family Studies, Monograph No 6, Melbourne, 1988; F Furstenberg and A Cherlin, Divided Families: What Happens to Children when Parents part, Harvard UP, Cambridge, Massachusetts, 1991; C Hooper; "Do Families Need Fathers? The Impact of Divorce on Children", in Mullender and Morley (eds), above n 23, p 86.

67 Some studies demonstrate that relationships with the non-custodial parent remain central for many children. There are also suggestions that for a proportion of children there may be positive benefits associated with discontinuing contact with the non-custodial parent. Other studies fail to show an association between frequent contact with fathers and children's well being. See P Amato and B Keith "Parental divorce and the well-being of children: A meta-analysis" (1991) 110 Psychological Bulletin 26; C Hooper, "Do Families Need Fathers? The Impact of Divorce on Children" above, n 66.

68 LFAA Submission ALRC Equality Before the Law (hereafter; ALRC, Equality). See also text to n I8. In a parallel vein the Family Law Reform Association NSW Inc argues that property settlements make divorce more attractive for women (communication with research assistant). The Australian Family Law Action Group comments in their Submission to the Joint Select Committee into the Family Law Act (hereafter JSC FLA) that they have received �countless horrendous records of �counselling� by the �Family� Court which has directly resulted in the actual subversion, corruption and destruction of families�.

69 For example, the CSAG, NSW; (JSC CFLI: CSS). See below text to n 154 and following, and text to n 277 and following.

70 JSC CFLI: CSS.

71 JSC CFLI: CSS. See also LFAA Conference (1997) papers. The CSAG, NT; submits that "dissolution of the family is accelerated by one parent finding out that leaving with the children is financially attractive than staying and resolving problems" (JSC CFLI: CSS). See also Men's Confraternity (JSC CFLI: CSS); The Family Law Reform and Assistance Association NSW (JSC CFLI: CSS): DADs (QId) (JSC CFLI: CSS). It should be noted that for some women, receipt of social security gives them financial security for the first time. Social security is a regular (if small) income which allows women to budget and plan in ways that they could not while they were dependent on their spouse's income - M Montague and J Stephens, Paying the Price fore Sugar and Spice: A Study of Women's Pathways into Social Security Recipiency, Brotherhood of St Laurence and National Women's Advisory Council, AGPS, Canberra 1985, pp 1-11.

72 LFAA, Sydney (JSC FLA).

73 LFAA, Newcastle-Hunter Region (JSC CFLI: CSS). Studies have found no real support for this perception. See P Pacek and G Hendershot, "Public Welfare and Family Planning: An Empirical Study of the 'Brood Sow' Myth" (1974) 21 Social Problems 658: M Montague, �Baby Booms and Benefit Bludging. Are Young Women the Victims of a Myth"(1983) 7 Community Health Studies 136: P Leahy, T Buss and J Quane, "Time on Welfare: Why do People Enter and Leave the System?" (1995) 54 American Journal of Economics and Sociology 33

74 JSC CFLI: CSS, LFAA Conference (1997).

75 Spokesperson from DADs in communication with research assistant.

76 The CSAG (NT) proposes that the sole parent pension be available for one year only and then clients need to revert to unemployment benefits (JSC CFLI: CSS). The NSW branch suggests that the sole parent pension should be withdrawn when the youngest child reaches the age of 12 in order to encourage the custodial parent to re-enter the work force before their work skills are too outdated (JSC CFLI: CSS).

77 JSC CFLI: CSS.

78 JSC CFLI: CSS. LFAA, Sydney Branch, also argues that "[t]he present system of custodial parent [sic] being able to continue on social security payments must now be discouraged so that the parent who takes responsibility to financially maintain the well being of their children should be awarded first priority. This action will again eliminate the spiralling Single Parent Benefits annual Government pay out currently costing our community 1.8 billion dollars." (JSC FLA). See also; Men's Confraternity Equal Opportunity Sub- committee (ALRC, Matrimonial Property).

79 Some of these tensions might be a result of the adoption by some Australian fathers' fights groups of arguments from the New Right. Carol Smart suggested in 1989 that in the UK the fathers' rights movements, new fatherhood and the New Right had a symbiotic relationship: "Power and the Politics of Custody" in Child Custody and the Politics of Gender, above, n 9. pp l6-l9. She explains, however, that the New Right consider that women should be returned to a "natural" state of dependency, while the fathers' rights movement is "quite content with the idea of women becoming financially independent, or dependent upon the state, after divorce". It is still true in Australia that the New Right and fathers' rights groups have a symbiotic relationship. Some of the groups are, perhaps unconsciously, adopting the rhetoric of the New Right in ways which produce tensions and schisms in their arguments.

80 See above, n 78

81 LFAA, Newcastle-Hunter region, claim a court preference for granting custody to mothers on the basis of "traditional" reasons "which no longer apply in a world where most females participate in the paid work force": JSC CFLI: CSS.

82 ALRC, Matrimonial Property. See also below, they believe that after divorce, each person should be responsible for their own destiny.

83 ALRC, Matrimonial Property, Review of Restraining Orders, at p 21.

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