Purpose

In this paper, I report on a preliminary analysis of 22 cases from a sample of 25 randomly selected appeal judgements related to parenting disputes in the Family Court of Australia (FCA). All 25 cases were described by the Court as finely balanced or closely contested. The 22 cases represent those in which custody or residence ¹ with respect to all relevant children was awarded to one "side" rather than being shared or split as occurred in the remaining 3 cases. My interest in closely contested cases is that their resolution commonly invites the court to directly or indirectly privilege particular parenting styles, particular assumptions about children’s needs and particular family values. My broad purpose has been to search for possible patterns of thinking and approach with respect to judicial statements and assumptions about these matters.

To do this, I conducted an analysis of the judgements not as legal documents, but as contemporary narratives on parenting, family life and the needs of children. The judgements in the sample contain multiple narratives around these issues. For example, there are narratives about morality, about commitment and about the importance of biology. There are narratives about the grief associated with divorce, about how it might be handled, about who can best handle it and about how it impacts on children. There are narratives about children as robust and about children as vulnerable. And there are narratives about parents who tell the truth, parents who lie, and the people who support them.

In the part of the research reported on in this paper, I focus on those aspects of the judicial narratives which speak directly or indirectly to issues concerned with male and female parenting roles.

The research issue

It is a time-honoured tradition in law that individual judgements or groups of judgements attract commentary from groups such as lawyers, sociologists, psychologists and academics. Much of that commentary appears to have the purpose of elucidating established or emerging principles or trends in the way the legislation is interpreted. Dicky (1997 pp 391-405) for example, has identified six considerations which frequently influence proceedings in parenting disputes in the FCA

They are:

• A preference for maintaining the status quo
• A propensity to not separate siblings
• A privileging of the mother-child relationship
• A privileging of natural parent relationships
• The wishes of the child
• Parental conduct

A common presumption within the general commentary on legal cases is that judicial findings or considerations are likely to act as a marker which will have some future predictive power. In parenting cases, however, such markers cannot confidently be seen as precedents which might be relied upon as a guide to future outcomes because the determination of the weight and mix of the matters considered under s 68F of the Family Law Act 1975 (Cth) remains firmly in the hands of the presiding judge². Section 68F contains the following broad range of matters which the judge is required to consider in determining what is in the child’s best interests.

• "weighted" wishes
• nature of relationships with child and prospective carers
• likely effect of changes brought about by orders
• practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact on a regular basis
• capacity of prospective carers to provide for needs, including emotional and intellectual needs
• child’s maturity sex and background (special reference to Aboriginal and Torres Strait Island children)
• need to protect children from physical or psychological harm (includes harm directed at child and harm directed at others in relationship to the child)
• attitude to child and responsibilities of parenthood demonstrated "by each of the child’s parents"
• any family violence applying to the child or a member of the child’s family
• any family violence order applying to the child or a member of the child’s family
• consider which orders would lessen chance of further child-related proceedings
• any other factors the court thinks relevant

Dickey (pp 388-391) has summarised the demise of reliance on precedent in family law parenting cases as follows

• Determination of the best interests or welfare of the child now depends on the particular facts and circumstances of each case
• Consequently, no result in a particular case can act as a precedent for another case
• No commonly recognised factors (such as status quo) can be elevated to a principle
• No commonly recognised factors such as unusual religious beliefs can lead to a prima facie presumption of parental unfitness

Thus Australian family law treads a fine line between "the wilderness of the single instance" and the maintenance of some sense of stability and predictability. But what constitutes stability or predictability in parenting cases? If particular individual features of a case cannot be elevated to a principle which might foreshadow an outcome, can it be demonstrated that clusters of perceived features do nonetheless inform repetitive judicial narratives? If so, what is the structure and content of those narratives?

As noted, in this part of the research the focus is on narratives around the issue of gender. Not surprisingly, given the way an adversarially conducted parenting dispute is normally constructed as a contest between a mother and a father ³ (or a mother/father figure), gender based criticisms are probably the most common of all criticisms of the way in which the FCA makes decisions. At the same time, the formal starting point of the FCA with respect to parenting decision making has, virtually from the outset, been that of gender neutrality. ⁴

One way of attempting to understand whether or not mothers or fathers are favoured in Family Court judgements because of their gender, is to conduct quantiative research into outcomes and view these from a gender perspective. In a study conducted some 8 years after the inception of the FCA, Horwill and Bordow (1983) found that when orders were made by consent, 18% resulted in custody going to fathers, 79% went to mothers and 3% resulted in shared care arrangements. Using a sample of 100 consecutive cases in fully defended hearings in the Melbourne Registry, Horwill and Bordow found that the figure for fathers then increased to 31%. In the same study, 54% of mothers were successful in defended custody hearings, whilst 10% of cases resulted in shared or split orders and 5% resulted in custody being awarded to somebody other than the parents.

In an Australia wide study just over ten years later, Bordow (1994) obtained similar results. In that study 31% of fathers were again successful in their applications. The percentage of successful mothers had increased a little to 60% . Shared or split arrangements were ordered in 8% of cases whilst this time only 1% of cases resulted in a person other than the mother or father gaining custody.

In the present considerably smaller sample, the equivalent percentages were 40% to fathers, 40% to mothers, 8% (two cases) to persons other than the mother or father and 12% (three cases) in the shared or split category. ⁵ Thus in defended parenting cases, which represent roughly 5% of such cases handled by the FCA, it would appear that fathers are granted residence orders roughly twice as often as in those situations in which they successfully negotiate such orders by consent.

Such figures are not infrequently seen as suggestive of lack of negative bias by the Court towards fathers or even of a bias in their favour. For example, Rhoades (2000 p154) suggests that the outcomes need to be seen in the context of Australian Bureau of Statistics (1999) findings that male headed sole parent families comprise 2% of households with children whereas female headed sole parent households consist of a little under 20% of such households.

A qualitative study of defended hearing judgements can shed further light on the question of what such outcome figures might mean? Are we seeing here a representative sample of a relatively small group of men who, through circumstance or temperament or both, are judged to be particularly good parents? Given that (extrapolating from the ABS statistics above) less than 9% of fathers head single parent households, is it men with a special combination of personal qualities and particular situations who are prepared to challenge the odds by applying for or defending a custody or residence order? Do these men in some way represent male parenting models for a possible future of greater gender equality in parenting? Or are other factors at work?

One way of approaching this question from a qualitative perspective is to identify those cases in which fathers were granted custody or residence and to search for common characteristics within the judicial narratives which support those decisions. If they can be found, a further question which arises is whether those same characteristics apply to cases in which mothers are successful. If similar characteristics are privileged in narratives which, in the end, are capable of favouring both fathers and mothers, a hypothesis of gender neutrality is strengthened. An hypothesis of gender neutrality would also be strengthened if little or no common pattern in the narratives attached to successful father and successful mother cases can be detected.

Demonstration of the presence of gendered narratives, on the other hand, would require evidence from the text of perceived strengths or weaknesses more specifically related to the fact that these parents were men or women.

Sampling

Before any narrative theme or pattern can confidently be said to have possible applicability beyond the cases mentioned, it needs to be demonstrated that the sample of cases from which the themes or patterns derive is likely to be representative of a population of cases.

The sample for the present study was derived from a search of all appeal judgements related to parenting disputes over custody or residence published electronically under AustLII⁶ between 1988 and May 2000. Appeal judgements rather than judgements at first instance were chosen because, via the appeal process, the client himself or herself defines those aspects of the case which he or she believes to be problematic, non-reflective of societal norms or in some other way unfair. If the appeal court accepts that grounds for appeal do indeed exist, it is then required to direct itself to those particular parts of the judicial narrative highlighted by the appellant.

My interest in this research was in judicial narratives concerning men and women who appeared to be functioning as adequate parents. For this reason, I screened out those cases in which violence, abuse or abduction of children were noted. Initially, I searched all judgements using the Boolean descriptors (custody or residence) & (appeal) & (not property, not abuse, not violence not abduction). This yielded a sample of 104 judgements all of which were then read to determine those which involved closely contested parenting disputes.

From this reading, 30 judgments were initially determined to be in the closely contested category. Determination "in" required a statement by the judge at first instance, or at least one of the appeal judges, that the case was closely contested or finely balanced or words to that effect. The determination was independently verified by asking a colleague, a qualified psychologist, to find evidence of statements about the case being closely contested. He was asked to bring to my attention contrary evidence relating to any case which was not an appeal and not related to a closely contested custody or residence dispute.

This process resulted in 5 further rejections. Hodak was a closely contested case but not an appeal ( the word "appeal had appeared in the judgement in a different context). A further 2 cases were rejected on the grounds that there was disagreement about the closely contested nature of the dispute. Though Pannell had been initially accepted as in the closely contested category, evidence had emerged during the hearing that it was not. ⁷Martin, though cited by the judge at first instance as closely contested, was emphatically regarded by the appeal court as not in this category.

Finally, though the words had appeared in the judgements, 2 further cases did not relate directly to custody or residence disputes. Van Aalst was a case in which the father was not contesting a change in the parenting arrangements. Rather, the custodian mother was (in the language of the day) contesting guardianship because she wished to exercise greater control over the children’s religious upbringing. Though Newling raises very interesting gender related issues concerning the perception of parenting roles, it too was judged on re-appraisal to fall outside the inclusion criteria. The case was an application by a father with respect to contact with his daughter who had been adopted (against the father’s wishes) by the mother’s second husband.

Many of the 74 judgements not initially included in the sample revealed themselves to be appeals which were concerned with technical matters such as costs or procedural issues. Others were shown to be disputes over child financial support or over property. (For example, in the latter case, it was found that elimination of the word "property" did not account to all financial disputes. Indeed in a few judgements, the word "residence", which relaced the word "custody" in the Family Law Reform Act, referred not to children but to the matrimonial property).

Verification was also needed with respect to my decision to exclude the 74 cases judged to be not in the closely contested parenting category. To do this, I asked another psychologist colleague to read through a random sample of twenty (20) of these cases and to search for statements to indicate that the appeal was either not related to a judgement about parenting or was not related to a closely contested parenting case. My colleague found no closely contested parenting cases in this sub-sample.

Returning to the final sample of 25, it is important to examine the extent to which it appears to be a truly representative one. If there had been a bias in the sampling procedure it is likely that clusters would reveal themselves around particular variables like type of case, year of judgement, name of judge, gender of applicant, gender of appellant and outcome. As noted in appendix 1, the range of issues addressed in the cases was extensive. Appendix 1 also reveals that at least 18 and up to 22 judges were represented from a total of approximately 50 judges within the FCA. ⁸

Sorting on the year of judgement variable (appendix 2) saw examples from every year except the years 1999 and 2000, ⁹ with no particular year being significantly over-represented. In terms of outcomes with respect to gender (appendix 2) three cases resulted in a shared arrangement or split residence order and in two cases, custody was awarded to a non-parent — a maternal grandmother and a maternal great-grandmother. Of the remaining cases, fathers were granted custody or residency on 10 occasions and mothers also on 10. The gender of both applicants and appellants (appendix 3) was also roughly equally divided.

Thus on the key variables, the sample appears a very heterogeneous one.

In addition, from a quantitative perspective, a working hypothesis concerning outcome might be that the Court demonstrates little bias with respect to its assessment of parenting and gender. This hypothesis is explored in the qualitative analysis of the cases below.

Method

The method employed in the study as a whole and in this particular focus on gender, was that of a content analysis of those aspects of the original judgements (judgements at first instance) which were cited and examined by the appeal court. The analysis does not include statements from the appeal court itself. Rather, as noted above, the advantage of considering appeals is that appeal court’s own analysis attempts to go to the heart of the judgement and in so doing, cites passages critical to the litigants’ perception of where the judgement "failed" or "succeeded".

In conducting the analysis of the judgements at first instance, my emphasis was on narrative and structure rather than statements or words in isolation. I was interested in the stories constructed by the judge. I was interested in examples of the way in which certain stories became dominant and were reinforced as a means of assisting the final decision making.

As foreshadowed above, one way of addressing the question of possible gender-based presumptions within the judicial narratives is to apply the results of the content analysis to the cases in which fathers were successful in their application and to compare this with the cases in which mothers succeeded. This was essentially the methodology employed in this part of the study.

Such an analysis is of course fraught with a potential for the reader to see what he or she may wish to see. If, as a researcher, I begin with a presumption that the Court is likely to demonstrate particular biases, ¹⁰ I will be more oriented to find examples of those biases and less "willing" to see counter examples.

Caulley (1994 p 17) has identified processes designed to maximise the trustworthiness of a qualitative analysis - prolonged engagement, persistent observation, triangulation (cross checking) of data, peer debriefing, negative case analysis and member checks.

Prolonged engagement and persistent observation were fundamental aspects of this study. Put simply, having arrived at a final sample, I have spent many hours in front of the computer screen. During the course of this engagement, I also adopted several means of minimising the chances of researcher bias. In the first instance, by choosing appeal judgements, I was required to search for the primary text (the judgement at first instance) within the commentary made by the appeal court. A standard technique of the appeal court in dealing with the appellant’s criticisms of the judgement is to search for other examples of judicial statements which modify or contradict the criticism. Thus at least some of the work of providing counter evidence had already been done by three experienced appeal court judges.

The fact that the judgements were published electronically also afforded me a variety of means of keeping track of thoughts and hypotheses. I developed a code whereby statements thought to be interesting or relevant could be highlighted within the text. My own comments were written in a different text, as was the commentary of the appeal court judges. By dating each draft, I kept track of developing ideas and hypotheses and could easily revisit earlier comments. By using line numbering and paragraph numbering, I was able to identify and retrieve texts accurately. By using the "find" function of the word processing package, ¹¹ I was also able to check for evidence of further examples or counter-example of themes initially identified.

In addition, it was important to consider opportunities for triangulating or cross checking findings. Were identified themes repeated within a particular judgement and across judgements? Were there counter examples of the theme within a particular judgement or within other judgements? Did counter examples feature in particular categories of cases - for example, with respect to this particular part of the study, were counter examples associated with gender related outcomes? Did counter examples also relate to different aspects of a particular case — for example did a counter example reflect a more complex analysis of an individual who was seen as neither wholly "good" nor wholly "bad"? Did other opportunities for triangulation present themselves — for example were there any cases sufficiently different in their nature to allow for an analysis of themes and assumptions from a fresh perspective?

In the early stages of data analysis, I conducted an independent reliability check with respect to my capacity to identify themes accurately. I presented a colleague with a list of themes I had identified and asked him to provide line numbers or paragraph numbers of examples (and any counter examples) within the text. I had identified 8 themes and had found a total of 37 examples across all eight. There proved to be disagreement about two examples with respect to two themes (one for each theme) suggesting a reliability of almost 95%. There were minor disagreements in a few cases about whether a theme began or concluded on a particular line, but these never exceeded one line in span. There was no disagreement about identified counter examples. Though a more comprehensive reliability check will be completed before the remainder of the study is published, I feel sufficiently confident to proceed with an analysis of results from the perspective of developing a working hypothesis.

Results

In what follows, I consider the structure and content of the judicial narratives in the cases in which the father was "successful" at first instance. I develop a hypothesis that when fathers are successful, two somewhat contrasting accounts of events feature in the judicial narratives. First mothers are likely to be described in some detail (thick description) as having failed or having been unable to conform to certain stereotypical views of motherhood. These views include a willingness and capacity to be present and self-sacrificing on behalf of their children. The father’s parenting attributes on the other hand, even if they have been displayed for a considerable time, are likely to be largely ignored (thin descriptions). Indeed, it is generally assumed that even these "successful" fathers are not be capable of parenting alone and need assistance.

I triangulate or cross check this hypothesis by briefly summarising the cases in which mothers are successful. I suggest that these cases contain thin descriptions for both genders. I suggest that mothers are likely to be successful if there is a perceived absence of evidence of the sort of maternal characteristics which are stereotypically seen as negative. In particular, it is important that there is an absence of evidence that these mothers in some way placed their own needs ahead of those of their children. Men’s parenting capacities again remain largely unexplored in these cases. Where brief assessments of men’s parenting roles are made, they are largely seen as providing external support. Men are again frequently seen as in need of assistance were they to take on a major parenting role themselves.

This hypothesis of privileging the self-sacrificing heroic mother, whilst simultaneously presuming that fathers will be inadequate, absent or in need of assistance, is further cross-checked by considering in more detail the case of "Re Evelyn" which forms part of the sample. As a surrogacy case, "Re Evelyn" is both recent and unusual for the Family Court. In this case, I argue that the Court was "distracted" by the human drama of an unsuccessful altruistic surrogacy arrangement. The distraction, in turn, was associated with an almost exclusive focus on the claims of the biological mother.

In summary form, what I believe is happening from a gender related perspective is as follows.

Successful Fathers Cases

Mothers (thick descriptions)	Not self sacrificing/ not committed Immoral/ promiscuous Absent Mental or physical illness
Fathers (thin descriptions)	Significant pre-existing parenting arrangement Supported by others — especially own mother/family or female partner.

Successful Mothers/ Maternal Grandmothers Cases

Mothers (thin descriptions)	Perceived willingness to place children’s needs first More time with child(ren) evidenced as "primary caretaker" role. Assumed to be more emotionally connected with child(ren)
Fathers (thin descriptions)	Solid & reliable Supporting/breadwinning role more suitable and better role model for children

The Judgements

Successful fathers category

In McCall, the judgement contains a clear expectation that good mothers should sublimate their needs and desires and sacrifice their happiness for the sake of their children. The judge speaks of ( 22) ¹²

"the disruptions in the children's lives which (the mother) caused by precipitously withdrawing from the marriage and taking the children with her from Tasmania to Victoria to live with another man in a de facto marriage."

The judge also notes ( 23)

"The situation which the wife has achieved is that for her own motives and without the best interests of the children in mind, she has withdrawn from her marriage and set in chain a course of events which has seen the children's home broken up and sold and seen them removed from their father and from the familiar continuing care given by their grandmother and grandfather ... ... They now live in rented premises with rather nebulous plans for future accommodation and the children have been required to make adjustments to Linus Smith, to his children and to life in the metropolis of Melbourne as against a rural environment in which they formerly lived, and with all this added to separation from their father and grandparents."

Once such an assumption is made in this case, other relatively ordinary if less than perfect parental actions are constructed as further evidence supporting the dominant narrative of mothers as needing to be self-sacrificing. For example, the trial judge assessed two episodes in which it was alleged that the mother did not attend adequately to the medical needs of her children as indicative (para 41) that she was "a failure as a mother". He was critical of the wife’s angry dealings with the children" and her "propensity to use indecent language to them" which he considered was "both demeaning to them and diminishes the role of the mother as a model for the children" (para 27).

In response to questioning about a tragic incident in which the father’s sister and children were shot dead, the judge reported (37) that

"She (the mother) gave an answer, then volunteered quite unnecessarily "He shot Joshua first and nothing was left of little Josh". This chilling and upsetting statement which nobody in the Courtroom wanted to hear, caused the husband's mother to rush from the Court in distress."

The judge described the mother’s second partner, whose first wife had given very favourable evidence on his behalf, as (42) an "enigma." Though it does not appear that the question was ever put to him, the judge also surmised that the mother’s current partner would be unlikely to marry her. He described their future as a couple as "nebulous".

In summary, this judgement constructs a narrative of gender related blame — blame for "causing" the breakdown of the marriage and blame for things done and not done in the role of mother. For example the alleged negligence regarding attending to children’s medical matters is assumed to be the fault of the mother only. There is no mention of paternal responsibility. Indeed, the father’s own personality and parenting capacities receive almost no attention, his future plans appearing to be intimately tied to the assistance he will receive from his mother.

The elements which go to construct the narrative in this case are effectively selected through a filter of a morally linked highly gendered lens through which the judge "sees" the case. Consistent with such an approach, the narrative is relentlessly negative with respect to its interpretation of the mother’s actions whilst barely touching on either the father’s attributes or limitations.

The case of K & Z also supports an expectation that mothers will sublimate their needs and desires and sacrifice their happiness (and in this case their careers) for the sake of their children.

The mother was described in K & Z as "a histrionic witness who sought to argue her own case" (2.2). The judge determined (2.2) that the mother was "not dedicated to the children's welfare quite as wholeheartedly as she claims to be but rather at times acts self-indulgently." In the same paragraph, he also noted that that where credit issues arose, he generally accepted other witnesses against the wife.

The wishes of the two young girls to be with their mother were discounted by judge in this case as due to what he saw as inappropriate influence by mother. He suggested (2.5) that that the children worried about their mother but saw father as "solid".

The judge also found mother’s discussions about her financial situation with the children to be "manipulative and wrong" (2.12). He was critical (2.14) of the fact that the wife had on two occasions moved away from the children "to further her own ends." He gave no credit to the fact that on both of these occasions the mother was pursuing studies in order to enable her to obtain professional qualifications. Equally, he did not comment on the fact that it was common ground that the father had obtained his own qualifications during the marriage and that his wife had supported him during this time.

This was a case in which, though no criticism was levelled at the father, the court found itself with two small girls who missed their mother and who had also adopted a belief that "girls should be with their mothers." ¹³Given that there was no serious question of incompetence on the part of either parent, the dominant narrative chosen by the judge became children as a reward for self sacrifice. Amongst other things, this construction allowed for the mother’s efforts to study towards a career to be then constructed as less than worthy than the efforts of the father.

As in the case of McCall, the dominant narrative is also supported in other ways by more negative interpretations regarding the mother’s behaviour and motivation. She is seen as "histrionic" — a word whose very origins are of course heavily gendered. She is not "wholeheartedly dedicated" to her children and is at times "self indulgent". Consistent with such a view of the mother, she becomes less reliable than other witnesses on issues of credit. Her discussion of money matters within earshot of the children is "manipulative and wrong". The fact that, with the support of his partner, the father completed the degree requirements for his own career prior to the separation is not mentioned in the narrative. The narrative speaks only of the mother’s desire to "further her own ends".

In the case of Fisk, the judge found (27) that the mother demonstrated insensitivity towards the children by moving with the children from the matrimonial home, at which point she "moved into Mr Bourke’s bed." He expressed "astonishment" (25) that the mother "made no offer and expressed no desire to return to the matrimonial home to live". The judge also found that the mother had lied in her evidence to the Court and suggested (15) that "it follows that if the wife lied, then so did her supporting witnesses."

In this case that the judge had ample material available to him in the form of the children’s wishes, the continuation of a status quo and the endorsement of this arrangement by a social worker, to use his discretionary powers to rule in favour of the father. What calls for further analysis is why the judge went considerably further in his comments.

Although the circumstances surrounding the marriage breakdown are not described, the judge determined that it was the mother’s actions at the time which were blameworthy. Especially blameworthy in the judge’s eyes was the speed of her moving into another man’s bed. The blame is couched in terms of insensitivity to the children’s needs. But the language also suggests an interest in the mother’s sexuality. An hypothesis that some judges may be uncomfortable with the juxtaposition of motherhood and sexuality is reinforced by the use of the word "astonishing" (25) to describe the perceived lack of resolve on the part of the mother to attempt to regain custody of the children after an interim hearing had gone in the father’s favour. ¹⁴

The judges criticism of the mother’s behaviour also appears to ignore the reality that, having been unsuccessful at an interim hearing, the range of options open to her was very limited. Generally, the only option available would have been to make application for a defended custody hearing. This she did. In the interim, it is difficult to see how she could have regained possession of the matrimonial home except perhaps by force. The fact that the mother then appealed against the decision made at the defended hearing also seems to indicate a level of commitment in gaining custody of her children.

As with McCall and K & Z, the judge’s traditional view of male-female parenting roles in this case is further suggested by the observation that the father was aware (14) ,that there were other people able to "assist" him in this endeavour, and that the mother would "be able to give the appropriate advice or render the appropriate assistance" on the occasions that the children were in her care.

In the case of A&J, the judge expressed considerable ambivalence about the fact that the mother of the four year old child was lesbian and was living in a lesbian relationship. He noted (9) that the parents had cared for the child "equally and evenly" describing the case as "finely balanced" or "evenly balanced" on at least four occasions (26,33, 58 & 62). Nonetheless it is clear in this case that the mother’s lesbianism was seen by the court to constitute a problem in itself. The judge noted (21) that it was "inappropriate for children to observe overt displays of affection between persons in a continuing and committed homosexual relationship".

There was much in this case to suggest that the parents were not in high conflict and that they had made commendable attempts to act decently towards each other and towards their child. Perhaps this was the reason why the judge felt moved to add (21) that "although the husband had not expressed concern about the wife’s sexual preference until the proceedings commenced, this was not to be taken against him."

The court in this case seems more concerned with the structural issues than with the parenting processes which have occurred since the birth of the child. The judge notes (14) that "as might be expected’" (italics added) the equal sharing arrangement "in the circumstances of these parties" had not proved successful for the child or for his best interests. Throughout the judgement, there is very little examination of the skills or deficiencies of the parties as parents or of those who are likely to play a parenting role — in this particular case the father’s mother and the mother’s partner.

Thus a characteristic of the judgement is the unusually generalised nature of the statements which support the issues upon which the decision ultimately turned. For example, on the issue of relocation (this was a case in which the father wished to move from Ballarat to Adelaide), the judge remarked (22) that "many children (italics added) are required to move into new surroundings and make new friends and do so successfully without important trauma."

Perhaps the most telling generalised statement was around the perceived need of the child (who happened to be male) for a constant male figure. The judge endorsed the Counsellor’s report (33) that regular communication between the husband and the child "would be essential for [the child] whose need for nurturing and a constant male figure will grow as he develops" [and that it would be particularly important in this case that the child] "have a husband (sic) figure close by". Indeed the judge went further, regarding this view of the counsellor (33) as tipping the balance in the case.

In the "successful father" cases reviewed so far, an important feature of the narratives, was that the mothers were judged as unwilling to uphold traditional notions of what constitutes appropriate expressions of motherhood. In these cases, the mothers’ lifestyle choices were linked with their capacity to parent. In each case, the father’s parenting qualities were scarcely considered. Indeed in three of the cases, the judges seemed relieved that the fathers would be significantly supported in their parenting roles by other women.

In the case of Moddel, the mother was seen as unable to cope with the care for her five young children. She was seen to have an undiagnosed "condition" described (para 7) only as "some sort of nervous reaction" which appeared to follow the birth of triplets. The judge’s observations of the mother in the witness box lead him to believe that elements of this "condition" remained.

This was not an easy case by any standards, the judge noting the "welter of conflicting evidence" that was before him. We learn that the mother’s own mother died whilst she was carrying the triplets in utero. But nothing is said about the presence or absence of social supports during this time. Rather, the mother’s incapacity to care simultaneously for two young children, bear and deliver triplets and cope with the death of her own mother, is couched in (albeit vague) medical terminology. At one level, the medicalisation of the problem absolves the mother from possible blame. At another level, the failure to inquire into the support structure seems to imply that the mother was in some way expected to manage.

It could be argued that within the win/lose framework of adversarial proceedings and in the face of a hopelessly inadequate assessment of the mother’s situation, the judge was presented with very little choice in this case. The end result was that, although the father assumed the major care of five young children, there is very little in the judgement which addresses his parenting skills. He is described (5) only as "an intelligent man, in stable employment and a responsible parent to his children."

Hong also appears to fall, this time more covertly, into the category of maternal inadequacy. Considered in isolation, the evidence for this statement is weak. But considered against an emerging pattern of perceived maternal neglect or incapacity, the puzzling conclusion noted by the Full Court might be better understood.

In this case, the mother had spent significant periods of time away from the child, due first to her need to return to China and apply for Australian citizenship from that country; and later due to her need for surgery in another State in Australia. In this case, the Full Court noted that in its view, the comments of the judge at first instance regarding personal and parenting attributes generally favoured the mother. The judge had described the mother (101) as "a sensitive, affectionate, caring parent". Although she had also described the father (90) as "warm and caring" she had earlier observed ( 2) that she regarded the father’s plans as uncertain, noting (4) "it remains to be seen how the husband will cope with the full-time care of the child without the assistance of his parents".

The Full Court’s degree of puzzlement at the outcome might possibly be explained in the following way. The judge spent a considerable proportion of the judgement in describing the details surrounding the mother’s absences. Whilst the reasons for her absences were overtly acceptable, the covert message embedded in the outcome may have been that mothers should be seen to place their children first. Thus if mothers are not seen to be clearly placing their children first, even men whose parenting capacities are (rightly or wrongly) seriously questioned by the court, are more likely to be successful.

In Lavette, the mother also "abandoned" a young child. She vacated the house with a daughter from a previous marriage and left the care of her two year old son with the father. By the time of the hearing was held, the child had been in the major care of his father for fourteen months. The status quo thus established, influenced the judge, but so too did a perceived difference in the parents’ approach to the child’s asthmatic condition. Thought it was common ground (8) that the child had a strong relationship with his step-sister, this was counter-balanced in the judge’s mind by what he described (11) as the mother’s "extremely laid back" approach to her son’s asthma. At the same time, the judge described the father’s approach to the asthma condition (11) as "obsessive".

Like Hong, the outcome of this case was puzzling. The father was shown (via tape recordings) to have lied about conversations in which it was alleged he had pressured his wife to leave the house. This elicited the following response (31) from the judge.

"I must say that I had up until that point completely believed what the husband had put before me by way of affidavit evidence and oral evidence as to the conversations. I had no choice at that point but to come to the conclusion either that the husband's memory was not as good as I had thought it was or else that he was lying and I don't particularly care which. I don't think there is anything more to be said about that but it was an effective way of proving that the husband's evidence, as to those points, was wrong."

Notwithstanding those comments, the judge observed (para 3) that that "the husband's evidence was more believable than the wife's."

It is true that whatever the circumstances of the wife’s departure, the lengthy status quo which had been established in this small boy’s life was now a reality which needed to be weighed carefully. On the other hand, one cannot help but speculate, again within the context of the cases described above, upon the extent to which it was regarded as unacceptable by the judge that the mother moved out and left her son.

The evidence in the case appeared to support the mother’s statement that due to pressure from the father, she saw herself having little choice but to move out and leave her son in his father’s care. As noted above, that evidence was dismissed. Even though it sits uneasily with the fact that the mother was prepared to pursue custody in a defended hearing and then take her application to appeal, the judge’s description of her attitude as "extremely laid back" suggests a perception of maternal neglect. Whether "true" or not, the "laid back" finding serves the function of supporting a dominant narrative of dereliction of duty on the part of the mother which in turn adds considerable weight to the father’s case for custody.

Again in this case, though both parents had re-partnered, the court placed emphasis (20) on the important role the father’s new partner would play in the upbringing of the child. The mother’s partner was not mentioned.

The case of Lavrut was an appeal against an interim hearing the result of which had been in place at the time of the appeal for more than five months. For some time prior to the interim hearing, the child had been living week about with each parent, a situation which, as noted in A&J, is not always looked upon favourably by courts. It is clear that following the separation, the mother had not played a traditional role of major carer in this case and in this sense, the result fits the pattern. However, little can be learned from an analysis because, as an interim hearing, the judge gave the case very little time. His main conclusion (9) was that he was "not satisfied either way but I do think it is very likely, on the evidence, that Christian, in fact at the moment, wants to live with his father." The appeal court was clearly concerned with the paucity of evidence upon which a decision which had lead to a status quo situation had been made. The appeal court ordered that a defended hearing be expedited.

There were two other cases in this sample in which fathers were successful in their applications for custody or residence. In the case of Ploetz, the father had had custody of his four year old son for nineteen months. The mother had made an earlier unsuccessful application for custody but the details of that are not described in the judgement. The mother had now remarried and lived interstate but was offering full time home care. It is not clear who moved away from whom in this case, though there is no evidence in the judicial narrative to suggest that the mother may have been seen to have abandoned her child. Rather, the judge was reluctant to disturb what appeared to be a stable nineteen month status quo in the case of a four year old boy.

In this case too, however, little is said of the father as a parent. Indeed, the judge emphasises the fact (7) that although the mother was able to demonstrate that the father spent considerable time pursuing sporting interests, he had the support of his own parents and that of his "well known" extended family in his parenting role.

In Christianos, a relocation case, the father had re-partnered and had had custody of his son for eleven years, During that time, the mother enjoyed regular access. It was the pending overseas relocation plan, which brought on the mother’s application for custody. The father had raised the stakes in this case, having already bought a business in Yugoslavia, knowing that the boy wished to remain in his care. This case raises important issues about the nature and meaning of parenting for the parent who does not have major care (permission to relocate meant that the mother would see her son, at best, only once a year). But the case does not appear to raise significant gender based issues.

Summary of successful fathers cases

In all the above cases, the nurturing and other parental qualities of fathers receive scant attention. From the point of view of the narratives which support the judgements, it can be argued that in the all cases analysed, the success of the fathers comes about largely by default. In three cases (McCall, K&Z and Fisk) the mothers are overtly criticised for allegedly placing their own needs above those of their children. In one case (A&J) the mother’s homosexuality is clearly seen as problematic and in another (Moddel), what appears to be a case of severe depression brought on by an overwhelming wet of life circumstances is constructed purely in medical terms. At the same time, a father of largely unknown capacities (at least so far as the material in the judgement is concerned) is awarded custody of five young children.

Taken at face value, the results of two further cases are puzzling, In one (Hong) the judge appears inconsistent in her observations. Whilst describing both parents in positive terms, her description of the mother is (correctly) noted by the appeal court to be more positive than that of the father. Indeed, the judge expresses real concern about the capacity of the father as a parent unless he continues to rely on the assistance of his parents. In the other case (Lavette) the judge describes the father as having an obsessional approach to his son’s asthma. He also acknowledges, but appears to ignore the father’s failure to tell the truth about his domineering and threatening attitude, an issue quite critical to the mother’s case and likely to be predictive of future parenting difficulties.

A mere affirmation of the status quo does not appear to provide an adequate explanation for the results in both Hong and Lavette. An hypothesis consistent with both cases and consistent with cases described earlier, is an embedded dominant narrative that mothers should not be seen to "abandon" their children. Against such a narrative, reasons for the "abandonment" are not so important. In both cases, the demonstrated and not insignificant paternal limitations are noted but not acted upon by the judges.

Lavrut conforms to a pattern of custody being awarded to a father when the mother has not played a traditional parenting role. However there is insufficient detail in this appeal against an interim hearing to carry an argument further in this case.

Ploetz and Christianos appear to fall more conventionally into that category of cases in which the status quo becomes a major factor. As a case involving a very major relocation, Christianos raises important issues regarding the nature of the relationship between children and their "other" parent, but those issues are beyond the scope of this paper. From a gender perspective, however, even in Ploetz the judge finds reassurance in her decision by the fact that the father will have the ongoing support of his extended family.

Successful Mothers

In the cases in which mothers were successful in their application, they are generally seen in traditional terms as being nurturing parents who have spent more time and/or will spend more time in the future. Mothers are seen to be more in touch with the children’s emotional needs. Fathers, on the other hand, are generally not considered as emotionally engaged parents. Their parenting capacities are more often associated with their roles as supportive breadwinners.

In Drenovac, the parents had been separated under the one roof for approximately two years. The judge found (19) that the father had a superior ability to offer the children intellectual assistance in their homework and studies. The father had continued to work on a full time basis. The fact that the mother had had a three year period in which she had not been in paid employment (11) went a long way to persuading the judge that her "continuity of care" was a significant issue in this case. The mother recognised the judicial expectations and appeared to adjust her plans accordingly during the course of the hearing. The judge observed, (12)

"She was working full time but then decided that she would give up work and initially become a full time caretaker for the children but her final proposal involved her in part-time work on two or three days a week."

The judge also asserted (19) that because the children were still young, their main task for the next few years at least would be coping with the emotional hurt occasioned by the break-up of the family. Thus apart from the issue of continuity of care, an important presumption underpinning the judicial narrative was that young children are inevitably hurt by divorce and that a mother is better equipped to deal with this issue.

In the case of Doyle, the mother, who suffered from an unspecified psychiatric and physical illness had nonetheless remained at home and on that basis was held to be the primary caretaker of the two young children. It was acknowledged that the father, who ran a legal practice, had needed to support his children and his wife financially. The father claimed, (18) that the mother had had almost continuous and extensive assistance from regular babysitters. But the court was again concerned (20) about the "tender age" of the children. It placed an emphasis on what it saw as a need for continuity of parenting of small children. Continuity of care was equated with time spent at home. Questions of quality of care, raised by the father, did not appear to be taken up in this case.

In the case of Kneller, the mother was working on a part time basis and had continued to have the children in her care since the separation some months earlier. The judge noted (40-42) that the children "had a close and affectionate relationship with each of the parties. Neither party impugned the quality of the children’s relationship with the other party and there was little to choose between them in that regard." At the same time, the children’s wish to remain in the care of their father was interpreted by the judge (62) as "the Disneyland factor". The judge placed emphasis on his negative assessment of the character of the father’s mother and sister, (50-52) assuming that they would be important assistants to the father were he to gain custody.

The father lost his custody application in this case, but also had a previous access arrangement reduced from fortnightly to monthly on the grounds that the five hour return trip was too onerous for the children. What is particularly interesting about this case is that the initiative to reduce access came from the judge. The mother had not requested that the father’s access be altered and the judge gave no advanced warning that he had been thinking along these lines. The fact that the matter was not foreshadowed prior to delivery of the judgement appears to suggest that in this case the Court placed relatively low value on the father-child relationship.

In the case of Sheridan, the judge was generally more impressed by the mother but at the same time overtly constructed the father’s role as that of an external support and breadwinner. He concluded ( 7) "that it would be better for the children to be in the mother’s custody or in the day to day care of the father’s parents whilst the father worked. The judge noted (8) that "it goes without saying that the children would benefit from the improved living standards which regular income from employment would confer." (9) He also noted (9) that the father

"appears well-qualified to obtain regular and well-paid employment. Should he do so he will be able to play a significant role in the future in their support and will incidentally provide a better role-model for the children than he does at present."

In Robbins, the judge decided in favour of the mother "by just a very feint feather" (25). At the same time, though the couple had effectively enjoyed a shared parenting arrangement prior to the mother taking the child interstate without warning, the judge noted (51) "I cannot get over the fact if it had not been for the running of the respondent (mother) that the child would still be, in effect, in the custodial possession of the respondent." In this case, the fact that the father’s long service leave was coming to an end, also weighed on the judge’s mind (51). Two presumptions in the judgement, neither of which appear to have been supported by evidence, were that the father would inevitably wish to return to full time work, and that this would negatively impact on the child were he to remain in his care.

In Smith, the judge observed (27) that "Mr Smith has never done anything, as far as the future of D is concerned, which would lead me to conclude that he would not make decisions which would not be in D's favour." The judge noted (27) that at the time of separation, "It was Mr Smith who chose to remain and look after D full time and to abandon his career at least temporarily." In weighing the applications, however, the judge seemed to find it difficult to envisage that the father would be satisfied with or capable of sustaining the role of major parent or that he could balance this with work commitments. He observed (27),

"He is a person that I cannot believe will want to remain out of the workforce." He added, "I find it difficult to believe that he will not re-partner at some time relatively soon and indeed this will probably be for D's (the child’s) benefit as much as anything else. "

In this case, the judge appeared to be reassured that, although the mother had initially travelled interstate and left the child in the care of the father, she was now pregnant to a man whom she had married. The man was a sailor who would be at sea for about six months each year. It seemed to be assumed that as a result of these circumstances, the mother would now be at home on a full time basis for the foreseeable future.

The case of Firth ran for 13 days. The judge deemed the father’s application to be motivated by malice but gave credit (29) to the interveners (the maternal grandparents) for having cared for the children in a satisfactory and appropriate way. It was common ground that the children (aged 10 and 12) wished to remain in the care of their grandparents and that they had had only limited contact with their mother since the separation of their parents. Perhaps critically, though,, the judge observed (30) that the mother "throughout the period of separation had endeavoured to maintain contact with the children and continued to seek extended access."

The judge in this case was clearly troubled by the restricted lifestyle the children would be likely to experience should they remain in the care of their very religiously committed grandparents. He expressed confidence in the mother’s capacity to overcome the obstacles in front of her, noting (28) that he was ""satisfied that the wife is well and adequately equipped to rebuild in the children their full confidence and trust in her."

Toon was a difficult case in that the children were judged to be clearly attached to a mother who was intellectually disabled. Part of the judicial construction of this situation (13) appeared to be that the father’s main contribution to the parenting of the children would be that he could provide an intellectual perspective, whilst the mother’s would be emotional. The father in this case, whatever his motives, was in a delicate position because any discussions between himself and his former partner could be constructed as exploitative because of the intellectual imbalance between them.

In the end, this is a case in which, as the Full Court notes, there was effectively no option but to rely on the "truth" of the judge’s observations about the differing parental contributions and to accept the narrative she constructed around those observations.

Ward was a relocation case which privileged biological motherhood. Though neither parent attracted any criticism from the judge, the decisive factor in this case is noted in paragraph 6.

"I have determined to grant guardianship and custody to the wife on the basis that she is the natural parent of both children, whilst the applicant husband is only the natural parent of the younger child."

Two further cases in which a maternal grandmother and a maternal great grandmother were favoured over the father (the mothers being not directly involved) are also considered within the category of "successful mothers".

The case of McMillan was one in which the mother was very young at the time of the birth of the child and took no part in the proceedings. The maternal great grandmother was awarded custody on the grounds that her environment offered more stimulation (33) and that she was more disposed (18) towards regular contact between father and child than was the father between the child and the great grandmother. At the same time, the case betrays a more fundamental judicial attitude with respect to fathering. The judge made several references to the inadvisability of the father remaining on social security benefits were he to gain custody. He saw claiming benefits not as a means to assist in the provision of good parenting, but as an unnecessary drain on the public purse (35), an inappropriate role model for the child (35, 46 and 48) and likely to encourage welfare dependency (48). He described the father’s attitude (34) as "myopic".

The case of Peterson had a complex history. Three of the children were in the full time care of the father, but for a variety of reasons, the youngest had remained with his maternal grandmother in another state. Due largely to resource problems within the Court, there had been several aborted attempts to hear the case and to provide an independent psychosocial report. On the occasion in question, the case was listed for hearing in a country town. Once again, no report had been prepared. However, though both sides had found and agreed upon the services of a local psychologist willing to provide an independent report within 24 hours, the judge refused to stand the matter over and opted to interview the young child himself. He awarded custody to the grandmother based on his assessment of the child’s wishes.

Summary of successful mothers cases

Nine of the twelve successful mother/maternal grandmother cases are characterised by traditional maternal roles before and/or after the separation. Mothers and mother figures had stayed at home with their children either full time or at least for some of the time and were planning to not work or work only part time if awarded custody. In Doyle, Robbins and Smith it is presumed, with implicit approval, that the fathers will continue in full time employment. At the same time, this clearly disadvantages them in their applications for custody or residence. In two further cases Sheridan and MacMillan, the judge makes more explicit statements about breadwinning being the preferred role for men and one which will serve as the most appropriate role model for their children.

Importantly in Firth, the mother’s restricted contact with her children since the separation was seen (probably correctly) as something beyond her control. Though there were no statements in the judgement attesting to the mothers parenting qualities prior to the separation and though the children did not wish to return to her care, the judge was satisfied that the mother would be able to restore confidence in the children’s perception of her as a parent.

The exceptions to the "traditional mother" hypothesis were Smith and Ward. In the case of Smith, the child-care arrangements prior to the separation are unclear. What is clear is that he mother had left the child in the care of his father whilst she pursued her career interstate. She had in the meantime formed another relationship with and subsequently married a man who was a sailor and who was expected to be at sea for about six months each year. She was expecting a child by this man and it was presumed that because of her circumstances, her parenting role would now take precedence over her career aspirations. In Ward, both parents were seen as caring and competent even though both planned to continue to work full time. From the judge’s perspective, however, the solution to this case centred firmly around the question of biological motherhood. This judgement has strong echoes of a traditional belief in the significance of a "maternal instinct."

A surrogacy dispute. The case of "Re Evelyn"

Biological motherhood also features strongly in the remaining "successful mothers" case. Because of its special characteristics, the case is considered separately and provides further triangulation or cross validation for an hypothesis that traditional notions of self- sacrificing motherhood are privileged, whilst fathers are more comfortably catagorised as financial providers and visitors to their children.

The case involved two couples, the "Q"s who were residing in the State of Queensland and the "S"s who were residing in South Australia. The Qs had an adopted son of Aboriginal descent who was three years old at the time of the hearing. The Ss had three children at the time of the hearing aged between three and seven years. Both couples had been married for approximately ten years. Mrs Q was infertile due to a total hysterectomy which had taken place prior to her marriage and about which Mr Q had full knowledge.

The couples had a strong friendship and spent a number of holidays together, during which time the infertility of the Qs was openly discussed. After one such holiday, Mrs. S put to her husband the possibility of conceiving a child using the sperm of Mr. Q. Her husband was strongly supportive of the idea. After a further holiday with the Qs (by which time the Qs had adopted their son), the Ss put the idea to the Qs. They were simultaneously shocked and extremely grateful and asked for time to consider the matter. In the following months, Mrs S renewed her offer on several occasions and the Qs finally accepted.

The Qs travelled to South Australia for the birth. Mrs. S spent five days in hospital and both couples spent a further six days in a flat, during which time the Qs took on the role of primary caregivers of the infant. Mrs. S was registered as the mother in the State of South Australia and Mr. Q was registered as the father. Mrs. S breastfed "Evelyn" in the hope that this would encourage lactation in Mrs. Q. However friction developed between Mrs. S and Mrs Q at this time around a perceived unwillingness to persist with efforts to breastfeed. Mrs S subsequently expressed concerns about the capacity of Mrs.Q to nurture Evelyn and to keep her informed about her progress.

Following the Qs return home, contact between the two couples was not what Mrs. S had hoped it would be. She became frustrated by what she regarded as an inadequate level of communication and was simultaneously struggling with the ramifications of her decision to agree to place Evelyn in the care of the Qs. After attended grief counselling and a relinquishing mothers’ group, she determined after approximately nine months to bring Evelyn back to South Australia. To this end, Mrs S travelled to Queensland and forty five minutes after arriving at the Q’s house, left with Evelyn.

Though "Re Evelyn" prompted a complex and lengthy narrative about parenting, belonging and biology, the questions requiring resolution are at root, not greatly different to the questions addressed in any relocation case in which parents or parental figures, lay claim a major parenting role of a child.

The pages of description of events leading up to the biological mother’s removal of the child from the care of the S’s contain a reference (188) to Mrs S "reclaiming" Evelyn. Perhaps the word "reclaim" foreshadows the judge’s deep-seated view in this case. It is as if, despite the complex set of events and a history of care of Evelyn by her father and his partner, true "ownership" belonged to the biological mother. The judge found (463) that " Mrs S will suffer extreme grief if Evelyn is not placed with her." No mention was made of the grief of the father, who had cared for his daughter for eight or nine months, though it was acknowledged that Mrs Q would also experience grief at the loss of Evelyn.

From the perspective of Evelyn, the judge found (461-465) that she would suffer problems relating to issues such as abandonment and identity during her adolescence; that Mrs S ( the biological mother) was best equipped to deal with those problems; and that the loss to Evelyn of not growing up with her biological half siblings outweighs her loss of her relationship with her adopted brother, Tom.

The judge also noted (505) that, "Some of the potential problems, such as the perception of rejection by her biological mother, necessarily disappear with a placement with the Ss." There are no similar statements regarding the father or the father’s partner. Indeed, the judge declares (547) that, "In the longer term, I have a sense that Evelyn would find residence in her mother's home as a more natural situation." (italics added)

"Re Evelyn" will no doubt prove to be the subject of considerable public commentary from a number of perspectives. But revealed by even a cursory examination of the case, are continuing assumptions which clearly privilege biological motherhood. The judgement constructs biological motherhood as something qualitatively different to other parent-child relationships and certainly qualitatively different to the relationship between children and their fathers. The judge privileges biology over nurturing and female biology over male. He concludes (538 — 541)

" … that, on balance, a child in Evelyn's situation is more likely to cope readily with the prospect of being required to visit the home of her biological father and step-brother from the comfort of the home of her biological mother and two biological sisters and one biological brother, than she would on the alternate outcome."

Summary, Limitations and Future Research

At the beginning of their recent review of research into fatherhood in the United States, Carbera et al (2000 p 217) observed,

"In the second half of the 19^th century, fathers … left their small farms and businesses to seek employment away from home in an emerging industrial economy. In so doing, they left responsibility for rearing children largely to mothers and, not surprisingly, the predominant construction of fatherhood in the twentieth century had at its core fathers’ instrumental or breadwinning role in the family. The constant presence of mothers as primary caregivers fostered the implicit assumption that father-child relationships had little impact on children’s development; and this popular belief was reinforced by developmental theorists throughout most of the century."

In a report of this nature, it is not possible to do justice to questions concerning perceived links between parenting and outcomes for children from the perspective of gender. However, it is worth noting Lamb’s (1997a p 120) conclusion to his extensive review of research on the development of father-infant relationships.

"We do know … that both mothers and fathers are capable of behaving sensitively and responsively in interaction with their infants. With the exception of lactation, there is no evidence that women are biologically predisposed to be better parents than men are. Social conventions, not biological imperatives, underlie the traditional division of parental responsibilities."

In his introductory overview of the role of fathers in child development Lamb (1997b) also notes that the persistence of a perception of mothers as self-sacrificing nurturers and fathers as breadwinners. He observes that even though the majority of mothers are now in the workforce, too many continue to occupy low paying, low prestige jobs with little prospect of advancement. The trade-off, therefore, of ‘allowing’ men to play a more active parenting role, may be, for them, of dubious value. According to Lamb, resistance by women may continue until fundamental societal changes alter the basic distribution of economic power.

Examining the results of a content analysis of six child-related (though not randomly selected) Family Court judgements, Berns (1991 p255) concluded that, "it would appear that altogether too many judges, both male and female, continue to believe that the best interests of the child will be served by that situation which most nearly approximates the patriarchal household romanticised by Rousseau."

In Emile, Rousseau (Foxley 1911 translation p149) sees the "tender care" owed by the mother to her children to be "such obvious and natural consequences of her position that she cannot without bad faith refuse to listen to the inner sentiment which is her guide, nor fail to recognise her duty in her natural inclination."

There is preliminary evidence from the above randomly selected and more contemporary cases that traditional constructions of motherhood persist within the Family Court of Australia and that as a corollary, the nurturing role of fathers continues to be viewed with scepticism. The evidence suggests that when fathers are successful, these successes may occur largely by default. When paternal roles are described, they tend to be constructed in role-base instrumental terms rather than in relational language. Thus an hypothesis deserving of further exploration is that mothers who show evidence of having played a traditional female role or of being willing to play a traditional female role, are likely to be successful regardless of the qualities displayed by the father. An hypothesis of continuing to privilege the "motherhood mystique" in contemporary judgements is further reinforced by a brief analysis of the most recent of the cases sampled, that of "Re Evelyn".

The study focused on appeal judgements only. Though this methodology has advantages, it also has limitations. The appeal process tends by definition to highlight the critical issue. But the appeal judgement does not contain a full transcript of the judgement at first instance. It is possible that a thorough content analysis of the whole of the judgements at first instance might reveal a more complex gender related pattern. Most of the cases cited have not been published as judgements at first instance. However a small number have been published and a comparison between these and their appeals is currently being undertaken. A larger project being contemplated, which would build on the work of Berns and on the work of Horwill and Bordow, involves randomly selecting judgements at first instance using the same boolean descriptors.

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Notes

¹ In Australia, the term "residence" replaced the term "custody" following the implementation of the Family Law Reform Act 1995 (Cth)

² See for example In the Marriage of F and N [1987] FLC 91-813 at 76,136

³ This is not of course the only construction possible. Consider the potential for different outcomes in asking the question, "Who should win residence of these children?" and in asking the question, "How do you plan to parent these children now that you have separated?"

⁴ In and early judgement, In the Marriage of Raby (1976) 27 FLR 412, the Full Court of the Family Court of Australia noted, "We are of the opinion that the suggested ‘preferred role of the mother’ is not a principle, a presumption, a preference, or even a norm. It is a factor to be taken into consideration where relevant."

This position was later confirmed by the High Court of Australia in Gronow v Gronow 27 FLR 427

⁵ With a sample of 25, a comparison of percentages can at best be broadly indicative. Compared with results from previous studies, the present sample would appear skewed a little in the direction of successful fathers. Unlike the previous studies, the cases in this sample included, as noted, only closely contested litigation. Also worthy of mention is the fact that in this sample, the two successful litigants in the "persons other than mother or father" category were the maternal grandmother and maternal great grandmother. In both cases, the fathers were applying for custody whilst the mothers were not. Thus success in these cases was more aligned to success in the "mothers" category.

⁶ Transcripts of all cases cited can be found on the world wide web at www.austlii

⁷This case presented a challenge with respect to interpreting the criteria for inclusion or exclusion. First, the evidence for it being initially perceived as closely contested was itself indirect. It was based on the appeal court’s reference, when considering this case, to the Judgement in Re N (Residence: Hopeless Appeals) in which it was noted(para 160) that "It may be an irony that the more finely balanced the decision, and the more acutely the judge has agonised over his decision, the less prospect there is of that decision being successfully appealed. " It was initially inferred from this reference that the appeal court considered this case to be finely balanced. But the appeal court then went on to note that, "On and from page 22 of the appeal book, the trial Judge dealt in some length with the appellant's disciplining of the children, particularly Arran. There is abundant evidence of the appellant's inappropriate behaviour towards Arran, not only by way of admissions made by the appellant himself, but also from the respondent and Mrs Woulleman (the children’s carer)" On balance, the choice was made to exclude this case from the list of closely contested cases.

⁸ Individual judges are designated in this table by letters of the alphabet except in the four cases in which appeal court did not name the trial judge. Three cases were heard by the same judge and two cases by another. The remainder were all heard by individual judges. The number of judges within the FCA fluctuated somewhat during the period spanning the judgements, but stood at 50 at the time these results were being analysed.

⁹ Though the cases are appeal cases, the year refers to the year of the hearing at first instance. Thus the chances of finding a recent case at first instance which had been hear on appeal and successfully submitted for publication have been relatively small. It will also be noted that two cases pre-date the date at which Austlii commenced publishing (1988). This is accounted for by the fact that the publication date from the point of view of Austlii, is the date of the appeal rather than the judgement at first instance.

¹⁰ I do not believe one begins with a non-position in such matters or a position free from any potential bias. In my own case, I have published material (eg Moloney 2000a; Moloney 2000b) on what I see as a widespread neglect of the value of the role of fathers as nurturers. I am therefore likely be especially sensitised to this (and correspondingly less sensitised to evidence of the opposite) in my reading of the judgements.

¹¹ I explored the merits of using a dedicated qualitative research program (NUD.IST 1997) for this purpose but decided that in this case, it offered no advantages over the functions available in Microsoft Word. For a discussion on the relative merits of using dedicated packages or the functions within modern word processing for this type of data, see relevant chapter in Coffey & Atkinson(1996)

¹² Numbers in brackets refer to line or paragraph numbers as they appear in the judgements.

¹³ The six year old is quoted as saying of her mother, " … she’s the one that gots [sic] us alive and girls should live with their mummy." (4.4) Her eight year old sister told the counsellor she though of her mother every day. Poignantly, she says, "I miss mummy a lot, she’s my only mummy. We haven’t been able to see her much and she sometimes cries." (4.2)

¹⁴ Mercer (1998) found this to be a feature of a number of judgements in her substantial qualitative study of appeals against parenting decisions in West Virginia. The question is not pursued further in the present study.

¹⁵ The Court used a fictitious name for the child in this case.

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References

Australian Bureau of Statistics Australian social trends 1999 Catalogue No 4102.0, p 30.

Berns, S. (1991) Living under the shadow of Rousseau: the role of gender ideologies in custody and access decisions. University of Tasmania Law Review 10, 3, 233-255

Bordow, S (1994) Defended cases in the Family Court of Australia. Factors influencing the outcome. Australian Journal of Family Law. 8, 3 252-263.

Carbrera,, N., Tamis-LeMonda, C., Bradley, R., Hofferth, S. & Lamb. M. (2000) Fatherhood in the twenty-first century. Child Development. 71, 1 127-136.

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Name	Type	Special Feature(s)	Judge
A&J	Relocation	Mother in lesbian relationship; child needs "constant presence" of father	A
Christianos	Relocation	Status quo; Male child with father 11 years	B
Doyle	Interim Custody	Time at home as evidence of primary care. Quality of care not considered	?
Drenovac	Custody	Young children deemed emotionally hurt by separation and in need of mother	C
Duck	Custody	Split Custody - status quo affirmed	D
Firth	Custody	Grandparents’ religious beliefs restricting mother’s relationship with her children	E
Fisk	Custody	Children in father's care 15 months	F
Hong	Custody	Mother loses despite being seen as having a stronger case — unavoidable absences	G
K&Z	Relocation	Mother absences seen as serving her own needs	H
Kneller	Custody	Father’s contact with children halved due to perceived stress of travel.	I
Lalor	Interim Custody	Interim sharing pending final hearing	J
Lavette	Custody	Mother considered "too laid back" to deal with child’s asthma	K
Lavrut	Interim Custody	Child's (7) wish to be with father	?
McCall	Relocation	Mother blamed for marriage breakdown and non-consideration of children’s needs	L
McMillan	Custody	Father’s plan to receive parenting benefits a "drain on public purse"	I
Moddel	Custody	Mother’s inability to cope couched in vague medical terms	D
Peterson	Custody	Refusal to allow independent report. Child's wishes determined by judge	M
Ploetz	Custody	19 month status quo; Father supported by extended family	N
Re Evelyn	Custody	Surrogacy case. Biological mother favoured over social mother. Biological mother favoured over biological father	O
Robbins	Custody	History of shared parenting. Mother seen as natural choice. Presumption that father would wish to return to full time work	P
Ross Doyle	Custody	Deemed a poor parenting choice either way. Mother’s "platonic" relationship deemed unnatural	?
Sheridan	Custody	Father’s role is to provide income	I
Smith	Custody	Presumed that father would need career and would need a partner to assist with care of child	Q
Toon	Custody	Father’s contribution would be "intellectual" Mother’s contribution would be "emotional"	R
Ward	Relocation	Status quo and biology privileged	?

Applicant	Case		Appellant	Case
Both	Ross Doyle		Fa/Intvnr	Firth
Father	A&J		Fa/Partner	Re Evelyn
Father	Christianos		Father	Doyle
Father	Drenovac		Father	Drenovac
Father	Hong		Father	Kneller
Father	Kneller		Father	McMillan
Father	McCall		Father	Peterson
Father	McMillan		Father	Robbins
Father	Peterson		Father	Sheridan
Father	Robbins		Father	Smith
Father	Sheridan		Father	Toon
Father	Toon		Father	Ward
Father	Ward		Mo/S Fath	Duck
Mo/Partner	Re Evelyn		Mother	A&J
Mother	Doyle		Mother	Christianos
Mother	Duck		Mother	Fisk
Mother	Firth		Mother	Hong
Mother	Fisk		Mother	K&Z
Mother	K&Z		Mother	Lalor
Mother	Lalor		Mother	Lavette
Mother	Lavette		Mother	Lavrut
Mother	Lavrut		Mother	McCall
Mother	Moddel		Mother	Moddel
Mother	Ploetz		Mother	Ploetz
Mother	Smith		Mother	Ross Doyle

http://www.aifs.gov.au/institute/seminars/moloney.html

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