Journal Article

Do Fathers ‘Win’ or Do Mothers ‘Lose’? A Preliminary Analysis of Closely Contested Parenting Judgments in the Family Court of Australia

Lawrie Moloney

in International Journal of Law, Policy and the Family

Volume 15, issue 3, pages 363-396
Published in print December 2001 | ISSN: 1360-9939
Published online December 2001 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/15.3.363
Do Fathers ‘Win’ or Do Mothers ‘Lose’? A Preliminary Analysis of Closely Contested Parenting Judgments in the Family Court of Australia

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In this research, I analysed patterns of judicial reasoning and assumptions in closely contested parenting cases published by AustLII, a publicly accessible electronic database. A content analysis of a heterogeneous purposeful sample of twenty‐two closely contested parenting disputes litigated over eleven years, revealed that presumptions about gender were an important aspect of judicial thinking. More specifically, I found that mothers were likely to be successful if they appeared to conform to a maternal stereotype of self‐sacrifice on behalf of their children. Generally, fathers were successful when mothers were judged to be in some way inadequate – that is, fathers tended to be successful by default. Notwithstanding parenting awards in favour of fathers in a little under half the cases, there is also evidence of judicial scepticism concerning their capacity to parent without the assistance of a mother figure, and/or scepticism about fathers' plans to reduce their commitment to the paid work force.

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Subjects: Family Law ; Marriage and the Family

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