The discursive power of the law: Its influence on professional and litigant decision-making and post-separation parenting arrangements in family law

Recognising and facilitating multiple and differing relationship priorities after separation
Thursday 26 July, 1130 – 1150


Zoe Rathus
Griffith University Law School

This paper argues that Australian family law seeks to influence parental and professional decision-making regarding arrangements for children after parental separation. This was first observed with the 1995 amendments to the Family Law Act 1975 (Cth) which entrenched a child’s right to contact with both parents after separation.
More detailed amendments became operative in 2006, partly in response to lobbying by fathers’ rights groups. These introduced a presumption that equal sharing of parental responsibility for children after separation was in the best interests of children and created a legislative pathway that linked this to specific time outcomes, including equal time. Research suggests that these reforms led to changes in outcomes regarding post-separation arrangements for children — whether they had been agreed by the parents or were the result of formal intervention.
This paper will explore reasons why these shifts in arrangements may have occurred. It will be argued that the law influences all of the actors in the system – the professionals and the clients. It will draw on research about how social science professionals may be influenced by the law, but it will also examine how the 2006 amendments unapologetically endeavoured to influence the practices of all professionals in the family law system.
Ultimately it considers how the discursive power of the law may shape post-separation arrangements and what impact this may have on the ability of parents, particularly mothers, to safely and peacefully construct an autonomous post-separation life.