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Using Bacchi's What's the Problem? Approach, critically explore the political and policy processes that resulted in the Family Law Amendment (Shared Parental Responsibility) Act, 2006 (Cth).

Introduction
In 2006 the Family Law Amendment (Shared Parental Responsibility) Act (Cth) came into being, after a three year policy process. This new legislation has been proclaimed by Attorney General Philip Ruddock as the most significant change to family law in 30 years (Ruddock, 2006). This paper will argue that applying Bacchi's (1999) What's the Problem? Approach to this family law `reform' process reveals that the problem was represented to be father absence in the lives of children post-separation brought about by a biased family law system and mothers behaving badly. In doing so it ignored the evaluative research that emphasised a major failing in the family law system was its abject failure to protect women and children from violent men. This paper will argue that this problem representation is ideologically driven at the expense of evidence based research. The New Right's concern about social change, especially in relation to gender roles, has driven it to declare a crisis of masculinity, and in particular fatherhood. This fits neatly into its broader claim of the crisis of the welfare state which, in their view, has led to family breakdown. Through the use of carefully constructed discourse, the New Right, and the current federal government in particular, have been able to successfully appeal to the broader community, with very little public backlash.

Using Bacchi's approach provides the tool to unmask the assumptions that underpin these changes as well as depict how potential critics of such a proposal have been silenced. My hope is that this paper will demonstrate the need to challenge how social problems are defined and policy processes analysed. Without this we are in danger of accepting policy solutions as needed, simply on the basis that `something must be done'. As social workers we play a role in policy implementation and, to ensure we act as agents of social change rather than agents of social control, we need to develop the capacity to critically explore policy processes and the solutions they present.

In my exploration of the family law policy process I will adopt a gender frame (Bacchi, 1999, p. 11) as this enables the underlying assumptions about the roles of men and women to become explicit. However, my intention is not to claim that this is the only or even the most significant factor of difference. There are, of course, many including `race', ethnicity, (dis)ability, class, sexuality, religion, however, due to the length constraint of this paper I do not have the scope to explore these. This also constrains my capacity to explore all aspects of family law, Bacchi's approach, and policy making and analysis, so I have elected to use the central questions that Bacchi posits to elucidate the main sites of controversy.

Analysing Policy Making Processes
Policy is a deceptively simple term which conceals some very complex activities (Considine, 1994, p. 2 as cited in Bessent et al, 2006, p. 27).

Traditionally, policy approaches have accepted that `problems' can be `discovered' and, as such, they have focused on problem solutions rather than the problem definition itself (Bacchi, p. 36; Bessant et al, pp. 3-19). Bacchi challenges this view, arguing that within each policy proposal is an "explicit or implicit diagnosis of the `problem'” and, as such, there is a need to identify and assess this problem representation. It is this `diagnosis' of the problem that shapes the solution offered. However, how a problem is represented can only ever be an interpretation, based on judgement and choices (Bacchi, p. 1). In representing a problem, there are two interrelated levels: what is of concern; and what is the cause. That is, underpinning every problem representation are causal assumptions and these are based on "contests over basic structure of social organisation” (Stone, 1988, p. 162, as cited in Bacchi, p. 4).
Such contests of ideas mean that ideology plays a key role in policy making which directly challenges any notion that `problems' exist independently of the world we live in, that can be easily identified and fixed. Context cannot be ignored and problems are constructed that fit within this. That is, policy making is a deeply political process: "the core idea of policy has its origins in a deep tradition of Western thought about what it means to live together in communities and the role played by politics in that shared life” (Bessent, et al, p. 28).

A key argument of this paper is that to understand the policy and political processes that shaped the Family Law Amendment (Shared Parental Responsibility) Act, 2006, requires an understanding of the dominant ideology driving this `reform' process. In particular it argues that how this dominant ideology constructs the roles of men and women is crucial to understanding how it defined the problem and shaped the solution. Since the mid to late 1970s, two ideologies have dominated the political space: neo-conservatism and neo-liberalism. As Maddox articulates "religiously infected social conservatism has become firmly enmeshed with right wing economic thought” (2005, p. 24). Neo-conservatism follows the Gemeinschaft tradition which sees society as organic and should be organised according to a strictly defined social order, which is both status and gender based. On the other hand, neo-liberalism follows the Gesellschaft tradition which eschews notions that society is organic and holds the individual as atomic and primary. This tradition does not assign a particular role to women; however, it does assume that the atomic individual is male. It does this through dividing the world into two spheres: public and private. The public sphere is where the rational, self-interested (male) individual dominates, and the private sphere is where everything that does not fit neatly into the public sphere resides, including women and caring responsibilities. The obvious tension between maintaining a social order with a commitment to a free market economy is resolved (in theory at least) through the role of women. The Gemeinschaft tradition explicitly places women in a subordinate role, whereas the Gesellschaft tradition does this more covertly, but the end result is that women are removed from the public sphere and assigned society's caring responsibilities with no acknowledgement of what this means for them as human being, and society overall (Bacchi, 1990, pp. xii-xv). Thus, the sexual division of labour allows both patriarchy and capitalism to coincide despite tensions between the two (Franzway et al, 1989, pp. 24-25).

Maddox refers to neo-conservatism as "Main Street” depicting its "worries about family and social policy” and neo-liberalism as "Wall Street” depicting its emphasis on free market economics. She describes the union of these two ideologies as they apply to the Australian context as "Manildra Street”. However, I choose to use the term New Right, acknowledging that it now may be somewhat dated but recognising that it remains the most relevant descriptor available that encapsulates both neo-conservatism and neo-liberalism. It is, in my view, important to note that while there are commonalities between the two, there are differences. What is essential to recognise is how they have been able to reconcile their differences to unite against other ideologies that they deem far more challenging to their world view. Bryson (1992) identifies how there has been a "strong moral attack” on the victories of the New Left in the 1960s and 1970s and this is most evident in the New Right's declaration that there is a crisis of the welfare state. Both neo-conservatives and neo-liberals challenge the existence and desirability of the welfare state and both agree that the solution is to "depoliticise social issues by `cutting back welfare, reviving familist, patriotic and other older social motivations and repersonalising dependency via charity”' (O'Connor, 1984, p. 234 as cited in Bryson, p. 105). New right thinking has also been strongly influenced by public choice theory. While this is ostensibly "part of the neo-liberal paradigm” (Staples, 2006, p. 5), it has proved highly acceptable to neo-conservatives as it marginalises dissenting voices thus maintaining a hierarchical social order. This theory espouses that individuals act purely in self interest and the market is the only control on individual behaviour (Mendes, 2003, p. 38). It eschews any notion of altruism, or more holistic theories to describe human motivation and behaviour. Crucially, it provides a language that has been widely adopted in public discourse in Australia (Staples, p. 5).

In recognising that problem definitions constitute "competing interpretations or representations of political issues” (Bacchi, 1999, p. 36) and thus the importance of ideology in policy making, we might ask how New Right thinking has become so dominant and alternative voices so constrained. The answer lies in understanding policy processes as discourse. Stone identifies the goal of problem representation: "Representations of a problem are … constructed to win the most people to one's side and the most leverage over one's opponents” (1988, pp. 106-7 as cited in Bacchi, 1999, p. 36). This is achieved through political discourse where "discourses are about what can be said, and thought, but also about who can speak, when, where and with what authority” (Bacchi, 1999, p. 41). So problems are defined through discourse and this is of itself a highly political process: "Discourse is not simply that which translates struggles … but is the thing for which there is struggle, discourse is the power which is to be seized” (Foucault, 1984, p. 110 as cited in Bryson, p. 4). Therefore, for New Right thinking to become the dominant discourse it had to seize this power. The economic and social circumstances of the 1970s provided the opportunity for New Right thinking to assert itself through the perceived failure of Keynesian economic theory and the decline in the traditional nuclear family (Mendes, p. 34). The re-emergence of neo-classical economic theory as the only solution to global economic circumstances needed to be offset by a belief system that provided social cohesion. Maddox asserts that "[Prime Minister] Howard has argued that economic restructuring is so unsettling that traditional families are a necessary defence” (p. 205). To do this, neo-conservatism, based as it is on a right wing interpretation of Christianity, had to appeal to the populace by appearing to uphold mainstream and cherished beliefs such as family, values and social stability (Maddox, pp. 29-49). One device utilised is to give space to more extreme (conservative) voices which then allows the government's response to appear more moderate. Maddox argues that the Prime Minister has used this technique most effectively as he has re-invented himself into a leader with vast popular appeal (p 16).

At the same time as making itself more politically acceptable, the Howard Government has used both the mechanisms available to it through government and the influence of New Right think tanks to silence dissent. The most notable example of this is the unprecedented attack on non-government organisations (NGOs), especially those representing women. The language of public choice has proved highly useful to this task. Two particular studies shed light on its success. Hamilton and Maddison's Silencing Dissent demonstrates how dissent has been silenced in contemporary Australian politics through the implementation of a "systematic strategy by government to mute opposition to government policy and control of public opinion” (2007, p. 2). This de-legitimising of voices in public discourse has been comprehensive and covered the realm of universities, the research community, non-government organisations, the public service, statutory authorities, the military and intelligence services and the parliament itself (Hamilton & Maddison, pp. 13-23). In particular, the role of non-government organisations has been severely curtailed by public choice theory's argument that they represent `special interests' and take part in `rent-seeking' behaviour, to feather their own nests. Staples argues that through defunding, forced amalgamations, the introduction of the purchaser/provider model (where the government is the sole purchaser), outsourcing welfare services and inserting confidentiality clauses into contracts, as well as taxation measures, NGOs' ability to advocate on behalf of their constituents and have a legitimate voice in policy discourse has been severely eroded. At the same time, New Right think tanks have undertaken a campaign to "undermine the legitimacy of NGOs and promote a public choice agenda” (Staples, p. 15). Maddox identifies the growth in these think tanks (pp. 109-118) and Staples argues it is the combination of the think tank's public choice campaign and the government's role in dismantling and de-legitimising NGOs that has brought about a "fundamental systemic change” to our democratic processes (p. 20). Women's voices have been a particular target of this campaign, both as a voice in public discourse and also at the policy making table. Maddison and Hamilton survey of NGOs demonstrates that women's organisations were the ones most likely to feel that their efforts to influence policy were "not at all successful” (2007, p. 90). As a recent study into women's place in Australian democracy demonstrates, women's organisations have been de-funded and effectively silenced, and policy machinery put in place to address women's substantive inequality has been dismantled. The influence of public choice theory results in a double negative for women:
The federal government is averse to both feminism and the model of participatory, pluralist, deliberative governance that would enable a wider range of women's NGOs to provide independent policy advice to government. Without a well resourced NGO sector that has the capacity to be critical of government policy, other areas of progress towards gender equality are also adversely affected. For example, the downgrading of women's policy machinery … took place with barely a whimper, as most of the organisations once in a position to comment or advise have now lost their capacity to do so (Maddison & Partridge, 2007, p. 95).

In effect, the substantial decrease in legitimate voices and the saturation of the dominant discourse means that the average citizen struggles to be informed of alternative views and is far more likely to accept problem definitions and proposed solutions as they are presented to them. Political discourse "helps to decisively shape the kind of policy solutions that can be taken seriously” (Bessent et al, p. 24).

Accordingly, I would argue that this political climate exacerbates the need to pay particular attention to how we analyse policy and Bacchi's approach provides the tools to enable this. If we accept that problem definition is at best only one interpretation of contested ideas, the first question to be asked becomes "what is the problem represented to be?” Following from this we must then ask "what assumptions are implied in this representation and what is left unproblematised or ignored”. Importantly, as policy impacts on the lives of people, we need to consider the effects of policy proposals and we can ask how these proposals may differ if the problem had been represented differently (Bacchi, 1999, pp. 12-13). These are the key questions Bacchi suggests must be addressed in any policy analysis and each of these will be discussed in what follows.

Background to Family Law
Under the Constitution, power to legislate in regards to "marriage, divorce and related children's issues” (Graycar, 2003, p. 456) resides with the Commonwealth, but it was not until 1959 with the introduction of the Matrimonial Causes Act 1959 (Cth) that this power began to be exercised at this level (Harrison, 2007, p.1). While this area of law is commonly referred to as family law it is important to note that the Constitution's view of the family was "Anglocentric, nuclear, male-focused and heteronormative”, and, according to Graycar, this vision of the family remains relevant today (p. 456). In 1975 the Family Law Act (Cth), enshrining the principle of no-fault divorce, was passed but not without controversy as some churches and even members of the Australian Labor Party expressed disquiet about what they construed as an "attack on the natural and fundamental group unit of society” (Genovese, 2006, p. 177). During the 1970s and 1980s the `tender years' doctrine, a "biologically essentialist view that mothers were the only ones capable of looking after children”, was abandoned as the court accepted the view that both parents were capable of caring for children (Graycar & Morgan, 2004, p. 26). However, as Backhouse (2000, pp. 106-111) clarifies, this principle never enjoyed the status of a legal presumption and there is no evidence to suggest that the court every demonstrated any "consistent or concerted support for the notion of maternal preference”.

The Family Law Reform Act 1995 (Cth) saw significant changes to the 1975 legislation with the inclusion, for the first time, of a clause under the factors to be considered in determining the best interests of the child that any "history or future risk of family violence affecting a child” had to be considered (Hunter, 2006, p. 737). However, at the same time a "new normative standard of shared parenting” was introduced (Graycar, p. 463). So, as Vogel notes, any the notion of a "clean break” after separation was defunct and replaced by one that "simulates the intact family” (2006, p.14). Further legislative changes were made in 1999 which introduced a "punitive regime for dealing with breaches of contact orders/agreements” (Graycar, p. 467). According to McInnes, this was as a result of lobbying from Fathers' Rights' Groups, promoting anecdotal evidence that mothers routinely denied contact (2007, p. 21).

The policy process that resulted in the current legislation officially began in June 2003 when the Prime Minister announced a Parliamentary Inquiry into Joint Custody (Mottram, 2003). Its Terms of Reference asked it to consider whether there should be a legal presumption for joint physical custody. In December that year, this committee published its report, Every Picture Tells a Story. Instead of recommending a legal presumption for joint physical custody, it recommended a rebuttable presumption for equal shared parental responsibility (joint legal custody) and where this was upheld, a consideration of equal shared parental time (HRSCFCA, 2003, pp. 41-43). The federal government published its response to this report in November 2004 in the form of a Discussion Paper, upholding the Inquiry's recommendations regarding shared parenting. It also proposed the establishment of 65 Family Relationship Centres where informal dispute resolution processes could take place as an alternative to the Inquiry's suggestion of a Family Tribunal (Australian Government, 2004). In June 2005, an Exposure Draft of the prosposed legislation was released and referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs. It handed down its Report in August 2005. The government responded to this and a revised draft of the legislation was introduced into the House of Representatives on 8 December 2005 (SLCLC, 2006, p. 1). In February 2006 this was referred to the Senate's Legal and Constitutional Legislation Committee and they handed down their report in March 2006. At each stage, further amendments were made and the bill became law in May 2006 to become effective on 1 July 2006. Officially, this legislation:
Represents `the most significant reform of the family law system in 30 years'. The amendments it effects are part of the Government's bold new reform agenda in family law which aims to bring about a cultural shift in how family separation is managed: away from litigation and towards cooperative parenting (extracts from Attorney General's press release, 31 March 2006; and the Explanatory Memorandum of the Bill, as cited in Middleton, 2006, p. 409).

However, as I hope this paper will demonstrate, while this may be the dominant discourse utilised to explain the changes, many scholars and practitioners have wide ranging concerns about the potential effects of this legislation.

The crisis of fatherhood as a key tenant of the crisis of the welfare state
In making his announcement to hold a Parliamentary Inquiry into Joint Custody, the Prime Minister indicated his problem representation of the existing family law system. He declared that that "equal time shared parenting would ensure that all Australian children had an appropriate male role model (McDonald, 2003 as cited in Berns et al, 2003-4, p. 17).

Perusing the parliamentary reports and government responses make it clear that the problem representation was constructed to be absent fathers in the lives of children post separation. The concern was expressed in the form of a child's right to a meaningful relationship with both parents underpinned by the belief that fatherlessness impacted negatively on children (Samson, 2004, p. 33). The causes were identified as a biased legal system and badly behaving mothers (McInnes, 2007) and the solution needed to provide fathers increased rights to child involvement. This was to be achieved through: establishing a rebuttable presumption of equal shared parenting responsibility (and its consequent consideration of equal shared time), strengthening the provisions available to enforce contact, and keeping marriages together (HRSCFCA, 2003; Australian Government, 2004; HRSCLCA, 2005; SLCLC, 2006).

Michael Flood is a key scholar of fatherhood in Australia and he notes: There has been an overall tendency for fatherhood to move out of the domain of stable marriage, with a decline in rates of marriage, an increase in non-marital cohabitation, an increase in divorce and an increase in non-marital childbearing (2003, p. vii).

Unsurprisingly, this type of social change is highly alarming to the New Right and leads to claims that fatherless children fare less well than those from `intact' families. As Flood notes, such assertions are "based on a confusion of correlation and causation, the selective use of evidence and even the repetition of fictional statistics” (p. ix).

A significant influence and a voice considered legitimate by government was that provided by non-resident fathers, in particular Fathers' Rights Groups. The three parliamentary inquiries relied heavily on the anecdotal evidence provided by these representatives, at the expense of representations from academics, women's organisations and the available evidence-based research (Batagol, 2003, p. 231; Rathus, 2007, p. 93; Berns, 2005, p. 80). Flood argues that these groups with their "aggressively conservative agenda” have been able to increase their political influence due to "their compatibility with the policy agenda of the Coalition government” (2003a, pp. 4-5). They have also formed alliances with conservative Christian groups such as the Festival of Light and Australian Family Association (Flood, 2003a, p. 4). These groups claim that the Family Court is biased, that mothers routinely deny contact and falsely allege domestic violence and/or child abuse, and that feminism has disadvantaged men. They stigmatise single mothers, claim women are as violent as men, and that the family law system is responsible for the high rates of male suicide (Dunn, 2004-5; Wilson, 2004-5; Flood, 2003; Berns et al, 2006). They provide the extreme voice that allows the government to appear more moderate and mainstream.

Offering shared parenting as the primary solution to fatherlessness has "easy egalitarian appeal and at first glance seems obvious and non-controversial” (Berns et al, p. 13). Combined with the "media valourisation” of fatherhood, this enabled the government to garner considerable popular support for its proposed changes (Berns et al, p. 16). With the voices of women seriously eroded for reasons cited above, there was, at least from the perspective of the general public, little dissent.

However, in my view, this discourse disguises the real intent behind these changes. I assert that underpinning these `reforms' is an ideological belief in patriarchal capitalism that is threatened by the existence of the welfare state and seeks to dismantle it. The New Right is concerned about the breakdown in family values (demonstrated by the high divorce rate) and the increasing number of mothers reliant on income support. Through welfare payments, women have been able to assert their economic independence from men (Patterson & Briar, 2005, p. 51). This is problematic for both neo-conservatives and neo-liberals. The former's hierarchical social order requires women to be dependent on and subservient to men, the latter is troubled by the entry of women into the public sphere as it brings issues that have traditionally been outside of its "philosophical purview” (Bryson, p. 162) into the public domain (for example, child care, maternity leave, aged care). In addition, neither accepts that the public purse should provide economic support to these mothers. As Genovese claims:
Promoting fatherhood is therefore about promoting marriage, and devaluing avenues to divorce. As Popenoe puts it `[t]he decline of marriage is a disaster for fatherhood' (1996, p. 25). This is particularly attractive for neo-liberal philosophy, which is committed to reducing the interference of the state within the private realms of its citizens, be it in terms of assisting single parent families, or … mopping up the product of broken marriages, the dysfunctional citizens of tomorrow who, it is argued, suffer increased rates of poverty, mental illness, drug abuse and other social ills requiring state support and intervention (pp. 180-181).

Both Wilson (2004-5, p. 29) and Batagol (2003, p. 230) identify that the push for shared parenting has been encouraged by conservatives in the hope that it will reduce divorce rates. I would add to this that other policy changes taking place in Australia presently reinforce this argument. Single mothers are currently confronted with major changes to income support policy, known as `Welfare to Work', as well a fundamental overhaul of the Child Support Scheme. The likely impact of both of these is to significantly financially disadvantage single mothers (McInnes, 2006; NCSMC, 2006). As such, and in accordance with public choice theory, it begins to look like family law changes are but one aspect of policy `reform' designed to dissuade women from choosing to leave men. The New Right are highly disturbed by the social changes over the past 30 years and would like to see a return to traditional gender roles. This ideological view sees a specific purpose for mothers:

She can prevent delinquency by staying at home to look after the children, she can reduce unemployment by staying at home and freeing jobs for men, she can create a stable family unit by becoming totally economically dependent on her husband so that she cannot leave him. She is the answer (Smart, 1984, p. 136 as cited in Bacchi, 1990, p. 194).

Reconstructing violence to fit the dominant ideology and discourse
Research undertaken by the Australian Institute of Family Studies indicates that violence is a significant factor in separation, with 66 per cent of couples separating noting it as a cause, 33 per cent of whom described it as serious (Laing, 2003, p. 2) and domestic violence is core business of the Family Court (Rhoades, 2002, p. 83; Sheehan & Smyth, 2000, as cited in Buckley, 2001, p. 182). In 1716 submissions the initial Parliamentary Inquiry received, those received from the Family Court, women's organisations, bureaucrats, community legal centres, academics, non-government organisations, and women's shelters arguing against the rebuttable presumption did so, at least in part, on the grounds that such a presumption would further disadvantage women and children who had experienced violence at the hands of their ex-partner/father (Samson, pp. 34-35). Considerable research demonstrating the "philosophical tensions in the existing scheme” (Kaspiew, 2005, p. 139) between shared parenting and safety was available to this Inquiry, the Attorney General's Department (responsible for drafting the bill) and the two subsequent parliamentary inquiries held to review the provisions of the bill. This research clearly identified that the family law system did not protect women and children from violent men and that there were significant gaps in the system that exacerbated the danger (Dewar & Parker, 1999; Rhoades, Graycar & Harrison, 2000; Rendell, Rathus & Lynch, 2002; Family Law Council, 2002; Kay, Stubbs & Tolmie, 2003; Hay, 2003; Kaspiew, 2005; Moloney et al, 2007). The social science literature documents the extensive and enduring adverse consequences of experiences of violence for women and children (Kaspiew, p. 143; McInnes, 2007, p. 23; Easteal, 2003, p. 257).

The initial Parliamentary Inquiry treated violence as aberrational and this was in "sharp contrast to the way anecdotes presented by non-resident fathers were treated” (Samson, p. 35). However, it did recommend a rebuttable presumption against shared parental responsibility with "respect to cases where there is entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse” (p. 42). In addition, it noted its view that the new legislation should contain a specific reference to a "child's right to preservation of their safety”, however, they stopped short of including this as a recommendation (pp. 28-43). It stated that violence and abuse needed to be `proved' and could not be "mere allegations” and accepted that apprehended violence orders were too easy for women to obtain (p. 90, p. 70) However, it did recommend that a national unit be established to investigate such claims (p. 105). In the government's response, violence was further sidelined and, where it was mentioned, concern about false allegations of such quickly followed (Australian Government, p. 6, p. 12). Several new measures were introduced including cost penalties if allegations of violence were deemed to be `false', consideration of the inclusion of a `friendly' parent provision, and a more punitive enforcement system (p. 6, p. 10 & p. 13).

The House of Representatives Standing Committee on Legal and Constitutional Affairs Report that examined the exposure draft of the proposed bill recommended further erosion of safety protections. In particular it recommended a re-drafting of the definition of family violence to insert an `objective test' (HRSCLCA, 2005, p. 35). This was the first time such a suggestion had been made and was accepted by the Federal Government despite the fact that this had not been considered in the consultation process to date (SLCLC, 2006, p. 30). The Attorney-General claimed "this amendment will help to address concerns that false allegations of family violence are being made in family law even where a fear of violence is far fetched or fanciful” (Australian Government, 2005 as cited in Bailey, 2005/6, p. 23). The Senate Inquiry recommended that the provision regarding false allegations not be included until further research was undertaken by the Australian Institute of Family Studies (SLCLC, p. 37), however, this was rejected by the Government. The new Act significantly shifts the focus away from concerns about violence in its pursuit of shared parenting (Rathus, 2007; Kaspiew, 2005). Overall, there is a new definition of domestic violence that raises the burden of proof (SLCLC, p.33); a `friendly' parent provision, a provision for the court to award costs against a party raising allegations that are deemed to be `false', and apprehended violence orders can only be considered it they are final or contested (Kaspiew, p. 140; Rathus, 2007).

Bacchi's approach "offers a framework for examining gaps and silences in policy debate by asking what remains unproblematised in certain representations” (1999, p. 12). The handling of concerns about violence throughout the policy process indicates that the evidence based research depicting the systemic issues which jeopardise women's and children's safety was left unproblematised. Instead, an examination of the Parliamentary Reports, Hansard transcripts, and official government documentation, indicates that the problem was constructed as one where mothers routinely made false allegations to gain a tactical advantage in court proceedings (Rathus, p. 107; Berns et al, p. 83). Not only did this disregard the evidence identifying both the prevalence and ineffective handling of violence, it also disregarded the available evidence that finds false allegations within the context of family law are, indeed, rare (Brown et al, 2001; Rhoades, 2002; Kaye Stubbs & Tolmie, 2003). It also conflated violence with conflict and saw this taking place at the point of separation. In doing so it recommended that disputes over children's living arrangements should be resolved as soon as possible "before conflict has escalated and disputes become entrenched” (Australian Government, 2004, p. 2). In addition, the new legislation makes no reference to "entrenched conflict” as an allowable factor to rebut the presumption of shared parenting responsibility (HRSCLCA, p. 30). Nor is there a rebuttable presumption against shared parental responsibility in cases of family violence, child abuse, entrenched conflict and substance abuse, as recommended in the Every Picture Tells a Story Report (Rathus, p. 94).

While the revised Act does contain provisions to deal with allegations of violence, as Rathus notes "the structure contains a strong message in favour of equal shared parental responsibility” and, as such, these provisions are "clearly the less favoured options” (pp. 94-5). For example, the requirement for mediators/advisers to advise clients to consider a starting point of equal shared time comes before any considerations of violence. The first Full Court hearing has interpreted the requirement for shared parental responsibility broadly: that as a matter of course it should be considered (Rathus, pp. 95-97).

Bacchi demonstrates that both neo-conservatism and neo-liberalism problematise violence as a threat to the traditional family so the solution is to restore "family harmony” rather than to examine the "problematic dynamics of family relations” (1999, pp. 164-179). These ideological underpinnings are highly evident throughout this policy process. She also indicates that we need to examine the "situated usage” of concepts such as domestic violence and that discourse plays a significant role in how it is commonly understood. Easteal (2003) refers to this as the "dominocentric reality” and Hunter's research into how violence is understood by the courts concludes "the real problem for women may turn out to be not lack of legal recognition but hostile social discourses of which law is only a part” (2006, p. 739). Overall, the anecdotal evidence of non-resident fathers and Fathers' Rights Groups that women make false allegations, that apprehended violence orders are too easy to secure, and that the court is biased, was accepted because it fitted more neatly within this ideological discourse at the expense of the evidence based research and voices of women. As Dewar states (2000, as cited in Graycar, p. 471):
The consistent message … is that, in its day-to day operation, family law fails to protect women and children from financial and physical harm. Yet this message seems to go unheeded by family law policy-makers. Family law policy often seems to be made in the teeth of, rather than on the basis of, the research and other empirical evidence available.

Disguising the construction of mothers and fathers by appealing to principles of formal equality
In analysing how the problem is represented and what is ignored, Bacchi argues that we must "tease out” and evaluate the underlying assumptions (1999, pp. 9-10). In particular, she notes:
Problem representations in policy texts play a crucial role in the way in which groups are assigned position and value within policy discourse. Unless we recognise and discuss this, there is a tendency to accept these designations as accurate reflections of some outside reality (1999, p. 139).

The key plank of the new family law system is shared parental responsibility and this is a "seductive argument based on the principles of formal equality” (Batagol, p. 231). As the Every Picture Tells a Story Report claims "the committee's view of a presumption is that it provides a preferred starting point of parental equality for negotiation of potential parenting arrangements after separation outside the courts” (p. 19). In fact, both family law and the policy process itself relied heavily on this notion of formal equality (Graycar & Morgan, p. 25; Samson, p. 34). Bryson refers to this as the "fallacy of equivalences” (p. 219) which defines equality as sameness and requires men and women to be treated alike. Claims for substantive equality based on different treatment are construed as "receiving `preference'” (Bacchi, 1999, p. 101) and thus rejected. Maddox argues that this has been an "enduring theme” of the Howard Government and claims that in our contemporary discourse a particular form of equality has assumed dominance:
Right wing equality, as reinvented by the neo-conservative think tanks in the closing decades of the twentieth century, wants everyone treated identically, regardless of where they start. Any extra help to some groups, however disadvantaged, amounts to `special privileges' which breeds `resentment' among those who do not qualify. The government's duty under this vision is to restore equality by taking the help away (p.117).

Adding to the impact of this view is the so-called "myth of equality”. Patterson and Briar argue that this has become the dominant discourse in liberal democracies around the world and is based on the notion that due to the social changes of the last 30 years gender is "no longer a social determinant of life chances” (2005, p. 47). This was certainly the conclusion reached by the Parliamentary Inquiry into Joint Custody when it concluded that "it is no longer appropriate to define parenting role by gender alone” (HRSCFCA, p. 14).

Equality rhetoric has been usurped by conservatives to argue that men are now disadvantaged (Bacchi, 1999, p. 125; Genovese, p. 174) and Samson depicts how Fathers' Rights Groups used this rhetoric to argue for equal parenting rights. They argued, and this was accepted, that men faced discrimination in the family law system, and, in the committee's view, the "continued concentration of women in primary care giving roles was seen as an obstacle to fathers spending more time with their children” (HRSCFCA, p. 34). Such discourse renders the advantages men receive through the current sexual division of labour invisible (Bacchi, 1990, p. 197). It also masks the reality of domestic violence and family disharmony (Vogel, p. 13) as it constructs an "idealised vision of the symmetrical family where powers and roles are equal (Smart, 1995, p. 185 as cited in Altobelli, 2003, p. 148). As such:
This type of reductionism is inappropriate and inadequate as it fails to acknowledge that a substantive equality also requires recognition of women's and men's differences, and an acknowledgement that government programs and policies affect men and women differently (Maddison & Partridge, p. 1).

By denying the gendered reality of the world including the reality that women continue to undertake the majority of unpaid care work and that the labour market remains segregated on the basis of gender (Samson, p. 34; Vogel, p. 12; Flood, 2003) meant that women were seen to hold power over men. This also meant that the role of the state in ensuring the continuation of the sexual division of labour went unchallenged and was assumed to be gender neutral. However, as Franzway et al (1989) demonstrate the state plays a key role in gender relations. This is especially true under the current federal government as it has deliberately introduced policies that make it difficult for women to vacate the private sphere for the public. Policies such as Family Tax Benefit Part B, defunding women's organisations, cuts to child care, funding cuts to the Affirmative Action Agency, attempting to water down the Sexual Discrimination Act, changes to child support that favour non-resident parents, as well as lack of policy in relation to paid maternity leave and pay equity ensure women's disadvantage is maintained (Maddison & Partridge, 2007; Maddox, 2005; Flood 2003a). Most significantly, throughout the policy process there was blatant disregard for the substantial difference in economic positions between men and women. The Australian Divorce and Transitions Project undertaken by the Australian Institute of Family Studies found that "women and the children in their care are still carrying the economic burden of marriage breakdown” (Graycar, p. 466). It was simply assumed that there was no requirement to look more deeply into structural inequities in exploring the issues surrounding the family law system.

The process looked no further than the individuals themselves that were involved in the system and it is clear to see that very different assumptions were applied to men and women. Samson describes the romanticisation of fatherhood and the unquestionable assumption that fathers being involved in their children's lives was not only of benefit to children, but to be deprived of it would result in adverse consequences. Even in situations of violence, there was not an automatic assumption that this meant that contact was not still to the benefit of the child (Braaf & Sneddon, 2007, p. 9). In fact, during the first Inquiry one committee member noted that "bad partners could be good parents” (Samson, p. 35). It was assumed that men wanted to spend time with their children and that they should be enabled to do this without changing their lifestyles (Berns, p. 84). The reality that fathers do not necessarily fulfil these expectations was not acknowledged in the Every Picture Tells a Story Report, in the government's discussion paper, nor in either of the majority reports of the two subsequent parliamentary inquiries to examine the bill's provisions. However, a statement made by certain Australian Labor Party members noted:
The bill leaves entirely unaddressed the even more difficult question of whether there should be any remedies available in the Family Court to assist a parent left with sole care of a child when the other parent walks away -- expressing no interest in sharing care of the child -- and not accepting any responsibility other than that forced on them by making compulsory child support payments (HRSCLCA, p. 224).

Further there was no recognition that abusive men may utilise the law to continue to abuse their former partners despite research evidence that this was common occurrence (Rhoades, 2002; Kaye Stubbs & Tolmie, 2003; Rathus, 2007; Braaf & Sneddon, 2007) and/or to avoid paying child support (Samson, p. 37).

Exploring the policy process reveals that fatherhood only becomes an issue at the point of separation. As Collier claims: "the continuing assumption underlying the new fatherhood was that fathering was only revealed as problematic for law at the point of divorce and separation” (as citied in Berns, p. 84). Smyth's (2004) research into post separation fathers indicates that demographic factors play a key role in fathers having ongoing contact with their children. Those with shared or substantial care are far more likely to be tertiary educated, financially secure and have flexible work arrangements. These finding indicate that structural barriers play a part yet any notion of this was ignored throughout the policy process.

Mothers, on the other hand, were constituted far more negatively. As the Shadow Attorney General noted in her Dissenting Report "the government seems to assume that the only impediment to shared parenting is difficult resident parents” (HRSCLCA, p. 214). The pervasive view that mothers deny contact maliciously was accepted by policy makers despite considerable research evidence that this simply was not true and where contact is withheld this is primarily based on fears about children's exposure to violence (Rhoades, 2002; McInnes, 2007). Research into the attitudes of separated mothers found that they supported child-father contact even when violence had been present (McInnes, 2007; Kaye Stubbs & Tolmie, 2003). Not only was this research disregarded but the problem was reconstituted: "the pre-separation abuse of the mother by the father is metamorphosed into post-separation abuse of the children by the mother in a shift of time and blame” (Rathus, p. 107); and the solution was to not only enforce time with fathers by disciplining mothers but also to enforce mothers to act as the facilitator of the child-father relationship (Berns, p. 81).

As Flood notes, mother blaming in not a new phenomenon but it is both unhelpful and inaccurate (2003, p. ix). However, it fits neatly into New Right thinking where: The pervasive contemporary validation of fatherhood, and the neo-conservative rhetoric of the essential father (a father who is, of course, the breadwinner) is also a rhetoric about the `taming' of unruly women -- women who believe that they can `mother' without the oversight and guidance of the father. The `essential mother' is the facilitating mother, the mother who not only commits herself fully to her children, but also understands that commitment to involve an obligation to enhance and foster the father-child relationship (Berns, pp. 86-87).

Finally, there was an assumption that the `ideal' post separation should resemble as closely as possible the `ideal' pre-separation family (Samson, p. 35), transforming from the nuclear to the "bi-nuclear” (Vogel, p. 12). This assumption was upheld at the expense of the available research about children's lives post separation. Both Australian and international research demonstrates that any prescription about how children should live post separation does not necessarily meet their best interests. In Australia, the Australian Institute of Family Studies has undertaken studies to measure the impacts on children. They found that that several protective factors, both structural and relational, were needed to facilitate effective shared parenting. These included: geographical proximity; business-like relationship between parents; child focused parental attitudes; commitment to shared care by all family members; family friendly workplaces; financial independence for both parents; and parental competence. Interestingly, they found that fathers tended to see shared care as their entitlement, whereas mothers were more likely to be child focused and see it as the father's right (Smyth, Caruana & Ferro, 2003). Gilmore conducted an extensive literature review involving many nations and concluded that it was the "nature and quality of contact” that mattered to children's adjustment rather than "contact per se”. In addition he found that benefits to contact were "generally modest” and that "care needs to be taken not to over-estimate the presumed benefits of contact” (2006, p. 359). Crucially two of the most well renowned researchers of children lives post separation, both affirm that the impact on children were the requisite protective factors are not in place can be highly detrimental (Smart, 2001; McIntosh, 2003). Yet the legislation no longer proscribes entrenched conflict from the rebuttable presumption of equal shared parental responsibility and its subsequent consideration of equal shared parental time. Vogel makes the point:
It seems clear that our judgements about what is in the best interests of the child is as much a result of political and social judgements about what kind of society we prefer as they are conclusions based on scientific data about what is best for children (p. 14).

Potential Effects of the New Legislation
Bacchi argues that considering the effects of policy must form part of policy analysis (1999, pp. 1-2) but as the legislation has only been in effect since 1 July 2006, and the requirement for compulsory dispute resolution from 1 July 2007, there is no evaluative data yet available to determine the "material consequences” of this policy proposal. The government has commissioned the Australian Institute of Family Studies to undertake an evaluation and its framework was released in March 2007 (AIFS, 2007). In my view this document exemplifies the dominance of ideology over evidence based research as it makes clear that the changes to the family law system will be measured against the government's policy objectives, not the actual real life impact on men, women and children.

However, many scholars and practitioners have outlined what they see as the potential effects. As mothers are more commonly the resident parent, reflecting the gendered reality of care (Genovese, p. 179), they are most likely to face the greatest inequities under this new family law system as rights have been enhanced for non-resident parents and further constraints placed on resident parents (Vogel, p. 18; HRSCLCA, p. 214; Berns et al, p. 22). The safety of women and children is likely to be further eroded as the emphasis is so firmly on the need to convince one parent (usually the mother) to facilitate contact with the other (usually the father) (Rathus, pp. 103-106). Research already identifies that mothers are dissuaded by lawyers and mediators to mention their safety concerns and this silence is likely to be exacerbated (Rathus, p. 106; Rhoades, p. 83; SLCLC, p. 65; LCSCLJ, p. xiv). The `future focus' of the legislation is likely to lead to a further minimisation and denial of the realities of violence in families (Rathus, p. 88). More mothers may find themselves in a "double bind” as to "oppose contact is to invite the wrath of the law yet to support it involves downplaying violence” (Kaspiew, p. 142). The ability of perpetrators to utilise these processes to maintain their power and control over their victims is likely to be enhanced (SLCLC, p 66; Vogel, p. 18). An emphasis on keeping relationships together in combination with a strong emphasis on contact, is likely to result in an increased number of women remaining in unhappy and/or unsafe marriages (Bailey, p. 22; Rendell et al, p. 50). Mothers' poverty may increase as shared care will reduce child support payments (Samson, p. 37; Batagol, p. 231). Children may be caused great harm if the shared care arrangements lack the necessary protective factors. Smart (2001) has found this experience can be "uniquely oppressive” for children as they feel responsible for making the arrangement `work'. Research finds that violent fathers are likely to continue their violence against children in their care, and their parenting style tends to be authoritarian and not child focused (Harne, 2003; Bailey, p. 25). Non-resident parents can decide whether or not to exercise their newly acquired powers without fear of penalty (Berns, p. 83). The impact is likely to be both highly gendered (Vogel, p. 18) and detrimental to children as the importance of their voices has been demoted to an `additional consideration' (Berns, p. 86; SLCLC, p. 63).

A centrepiece of the changes is the creation of the Family Relationship Centres (FRCs) with the intent to move from litigation to informal dispute resolution (Australian Government, 2004). According to the Attorney General's Department: "FRCs are central to achieving [the] cultural change and the operators of the Centres must be focused on achieving the Government's objectives. A Centre's performance in achieving outcomes will affect the amount of funding they receive” (AGD, 2005, as cited in Kirkwood, 2006, p. 18). Achieving parental agreement outside of a court process takes the emphasis off the best interests of the child as prescribed in the Act as there is no requirement to ensure these principles are met (Field, 2005). In studies to date regarding the likely impacts, many concerns have been raised, including: the requirement to encourage couples to reconcile; lack of neutrality of the practitioner, lack of accountability as it is a private process, use of coercion, pressure to obtain an agreement to meet government's key performance indicators, lack of specialist staff, insufficient training, ignorance about power imbalances, heavy reliance on screening tools, and the removal of lawyers. These scholars also note that despite the qualified exemption from dispute resolution where `reasonable grounds' are able to be established to demonstrate a history of violence, these cases will still become part of this system. They cite the existing research that identifies that women are disadvantaged in informal dispute resolution, that they are more likely to feel pressured to agree, that practitioners often fail to recognise violence and are overly reliant on disclosure, and that practitioners focus on the mother's reluctance to agree to contact rather than the hostility of the perpetrator (Field, 2005; Bailey, 2006; Kirkwood, 2006; Braaf & Sneddon, 2007; Rathus, 2007). The requirement to enter this process as early as possible disregards the evidence that directly after separation women and children are most at risk from harm, including murder (Laing, p. 2). The government of the United Kingdom had planned to introduce a legislated requirement to require compulsory mediation but after conducting a pilot scheme it chose not to enforce it as it found that during the early stages of resolution of children's matters it simply was not effective (Banks et al, 2005, p. 82).

The New South Wales Parliament and Government has indicated that it is gravely concerned about the potential detrimental impacts on women and children by holding an Inquiry to consider these more fully. In the NSW Government's response, it noted that anecdotal evidence was already available that suggested women were being coerced into mediation with their perpetrators. It undertook to advocate with the Commonwealth about an alternative mediation process involving lawyers and agreed to undertake its own evaluation of these impacts (LCSCLJ, 2006; NSW Government, 2007). Rathus (pp. 110-112) offers some suggestions for effective evaluation including the need to design research questions that can attempt to measure the consequences of the `future focus', and that compare and contrast outcomes achieved at different stages and by different means available so that different responses to violence and other forms of social disadvantage can be measured.

The purported intent of this policy proposal is to ensure that children have meaningful relationship with their father yet it neglects to address the reality that not all fathers want to be involved and that some fathers, due to their use of violence, should not be involved. Instead, and in my view:
A proposal to give all biological fathers automatic rights would not ensure the actual participation of those men in child care, or, of itself, build a good relationship between father and child. It would simply [give] such fathers a dimension of power over the child and possibly through the child a certain degree of power over [their] mother (Brophy, as cited in Bacchi, 1990, p. 199).

Different Policy Responses for Different Representations
In offering my thoughts on how the policy response could differ if the problem had been represented differently, I must acknowledge that this also involves values and assumptions based on my own ideological beliefs. These will be in stark contrast to New Right thinking as they are influenced by feminist and social democratic principles. However, this would be tempered by a strong commitment to credible research evidence.

Firstly, I believe a more appropriate policy response would be one that addressed child-father relationships prior to separation (Batagol, p. 231) facilitating "opportunities for fathers to develop stronger, more intimate bonds with their children and to enhance their roles within their families (Flood, 2003, p. vii). Flood offers suggestions to address the structural changes needed:
sustained attention to men's and women's achievement of work-family and work-life balance; widespread adoption of family friendly policies and processes in workplaces; substantial paid maternity and paternity leave; re-working of current family policies which reward a homemaker/breadwinner model split in couple families and penalise single parent families which share care of the child with the other parent (2003a, p. 5).

The Human Rights and Equal Opportunity Commission (2007) has recently released its report It's About Time: Women, Men, Work and Family offering numerous recommendations to begin the process of addressing some of these issues.

Secondly, I would like to see the recommendation of various committees' to enshrine in the legislation a child's right to preservation of their safety as paramount (FLC, 2004; Family Law Advisory Group, 2001; HRSCFCA, 2003). The New Zealand legislation offers a useful starting point with its introduction of Section 16B into the Guardianship Act 1968. This section requires a court to determine `as soon as practicable' whether an allegation of violence is proven. Where it is, the court must not order residence or unsupervised contact to the violent parent unless satisfied that the child will be safe using a range of factors articulated in the legislation. An evaluation of the impact of this amendment has found that the safety of children has improved (Chetwin et al, 1999). In addition, the Family Law Council's (2002) recommendations to address the jurisdictional gaps between state government child protection services and the federal government's family law system, especially its recommendation to establish a national unit to investigates claims of abuse, should be implemented forthwith. Informal dispute resolutions processes should be voluntary in a similar manner as they are in the United Kingdom. A court support system for victims of violence should be established with the primary aim to maximise safety and that acknowledges the impacts of trauma on victims' capacities to participate in such proceedings (Tinning, 2006). To cite McInnes, "we need a system that privileges child safety, underpinned by a robust investigative process and zero tolerance approach to family violence” (2007, p. 34).

Conclusion
In this paper I have utilised Bacchi's framework to reveal how the problem within the existing family law system was represented in the dominant discourse, teased out the underlying ideological assumptions underpinning this representation and explored what was ignored and not problematised. I have suggested some likely effects and offered some comments regarding possible different responses. I have argued that New Right ideology has strongly influenced this policy process through its reification of fatherhood and claims it is in crisis, and that the resultant response is most likely to advantage (white, middle class) men at the expense of women, children and in disregard of the available research. In doing so, I do not wish to imply that I believe that the role of fathers is not important for children, or that all men use violence and are therefore dangerous to women and children. I agree with Flood that fathers' positive involvement with their children should be supported but that this "will not be achieved by ill-considered changes in family law” (2003a, p. 5). As Vogel, citing Smart and Neale (1999), notes "family law seems to assume that co-parenting will foster collaborative relationships but our evidence suggests that if there is a causal link at all, it is in the opposite direction, caring relationships may support the development of co-parenting arrangements” (p. 17).

My belief, confirmed by my experience working with single mothers, is that this policy response will prove highly detrimental, and in some cases, catastrophic for victims of violence. I struggle to accept the validity of the anecdotal evidence relied on and see this particular policy response as part of a much wider campaign currently being waged by the New Right, and the Howard Government in particular, to reassert patriarchal notions of the family as well as re-establishing policy obstacles that will make it more difficult for women to end relationships with men. Genovese resonates for me when she challenges the notion that the existing family law system was biased against men:
What can be identified as threatened … was the normative discourse of family: of traditional values, of intact marriages, two parent families, and of dependent spouses. It is the possibility suggested, and the piecemeal change offered, by social reformist ideas of equality, that has been enlarged to create the idea of wholesale feminist victory, where men have been vanquished; their rights and access to equality within the family trammelled … In the contemporary moment this tendency to neoconservatism, concerned with the state intervening in private family disputes, is running in parallel with neoliberalism, which eschews exactly such interventions. The collision between neoconservatism and neoliberalism has had a manifestly detrimental impact on collective movements, like feminism, and its ideas about the family (p. 179-180).

Of course, the difference between my representation of the problem compared to the representation as depicted by the dominant discourse arises from competing social visions. But as Bacchi claims, "there is no stepping outside of these influences” and "[i]f we accept that our world is socially constructed, then it can be changed by challenging -- deconstructing -- constructions which have effects we wish to reduce or eliminate” (1999, p. 62). As social workers we need to understand power, politics and policy to avoid individualising and pathologising the clients with whom we work. We need to keep at the front of our minds Schwarz's (1969) concept that private troubles are indeed public issues. We need to question and challenge policy definitions and solutions because to do otherwise leaves us vulnerable to acting as agents of social control. In such a troubling and hostile climate, the role of social workers faces grave danger -- do "we make ourselves acceptable to those is positions of power in the current structure by not rocking the boat” (Bryson, p. 232) or do we maintain our heritage to challenge the dominant discourse so we can truly act for those we seek to help: the most powerless, marginalised and vulnerable?

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