'Meaningful relationships' in the Family Law Act Amendments of 2006: A Socio-Legal Perspective On Fathers, Mothers And The 'Sharing' Of Parenting After Separation



'Meaningful relationships' in the Family Law Act Amendments of 2006: A Socio-Legal Perspective On Fathers, Mothers And The 'Sharing' Of Parenting After Separation

The first view is perhaps best articulated by Blackstone (1765) whose starting point was the principle of paternal authority. According to Blackstone, paternal authority was tied to the three paternal obligations of maintenance, protection and education of the father's children. The second view, which dominated a good deal of twentieth century family law, effectively turned Blackstone's construction of the world on its head. In this understanding of parent-child relationships, motherly love and the so-called 'maternal instinct' was seen as critical to the survival of a child, whilst separated and divorced fathers' input into the development of their children was minimised (Friedman 1995; Jacob 1998).

Although societal expectations regarding fathers' financial obligations after separation and divorce have remained, there is evidence in Australia that both before (Burns 1980) and after the 1975 Family Law Act, many separated fathers opted to contribute little or nothing to the support of their children's upbringing and development. Some of these men have been described in North America as 'deadbeat dads,' though as Smyth (2009: 3659) has pointed out, Braver and O'Connell's (1998) research would suggest that a more apt term for many of them is 'defeated dads'. It is of course difficult to morally justify a father giving no support to his child, even in circumstances in which the father feels he has been emotionally disenfranchised. At the same time, it is perhaps not so difficult to ernpathise with the feeling of many men during this period that the 'meaningful' aspect of the relationship they' had with their children post-separation had been reduced to that of 'walking wallets'.

Relationships From The 0utside: The Privileging Of Fatherhood

According to legal historians such as: Dickey (1997) and Finlay, Bailey-Harris and Otlowski (1997), Blackstone's (1765) formulation of Jaternal authority sat beside fathers' proprietorial-type relationships with their children, especially their sons. In English law, these relationships were in turn associated with questions of inheritance. With respect to wives and mothers, Dickey also noted that in property matters, the 'doctrine of unity' prevailed in England until well into the nineteenth century. Dickey suggested that from a legal perspective, the effect of the doctrine of unity 'was to suspend the very being or existence of a wif' (1997: 237). He noted that the dubious justification of this was found in Genesis 2.24: 'ThJrefore shall a man leave his father and mother and shall cleave unto his wife and they shall be one flesh.' If a wife had no legal standing, then a culture of, so far as we can understand it, little appreciation (or at the very least little acknowledgement) of the developmental or psychological need as of children, then it is not surprising that BlacUstone defined the father's three obligations of maintenance, protection and education of ...