This chapter does not draw directly on John Eekelaar’s work. However, when I started teaching family law back in the 1980s, his brilliant Family Law and Social Policy opened my eyes to the potential range of family law scholarship. His many works since then, ranging from close case analysis to legal theory, and including numerous fruitful collaborations with social scientists, have been an inspiration. I am proud to be able to contribute this chapter to a book in his honour.

1. INTRODUCTION

A court has to decide on interim arrangements for a baby girl, ten months old. The judge has limited time, and has to rely on untested affidavits by the child’s parents. The parties recently separated; each party claims to be the child’s ‘primary carer’, and says that the other is not to be trusted with the child. Among other serious allegations, the mother says that the father is dangerous, violent, abusive and alcoholic; the father says that the mother is psychologically unstable, has serious difficulties with alcohol, and has attacked him violently with a knife. Because in such interim proceedings there is no time for cross-examination, and because there is no other evidence, the court cannot determine the truth of any of these allegations. What arrangements should it make for the child’s immediate future?

Such a case arose in 2007, shortly after the Australian legislation had been changed significantly. We will consider that legislation before returning to this case, and its surprising outcome.

2. THE LEGISLATION

2.1. BACKGROUND

Before the mid 1990s, the provisions of the Family Law Act 1975 relating to children followed a familiar pattern. Both parents had guardianship of their children, and joint custody. The court could make orders relating to guardianship, custody and access. The court was to treat the child’s welfare as the ‘paramount consideration’, and there was a modest list of matters to be taken into account.

2.2. THE IMPETUS FOR CHANGE

Pressure from what have been called ‘fathers’ rights groups’ played a large part in the government’s decision to embark on family law reform.