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Silenced by reason: The creation of the civilised post-divorce family

Flynn, Teresa (2015) Silenced by reason: The creation of the civilised post-divorce family. PhD thesis, Murdoch University.

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This thesis sets out to explore how family law has come to shape and regulate the nature of the post‐divorce family, with particular reference to contemporary Australia. In so doing, it positions law as part of a broader set of behavioural, social and economic regulations through which separating families are re‐formed in the contemporary context. In considering law in this wider context, I have a particular interest in the mediation process within family dispute resolution. Here I consider how the mediation process works to steer negotiations between divorcing parents in particular directions, and in the process potentially sidelines, or silences, other emotional and personal issues deemed to be irrelevant to the desired outcome, which is increasingly construed in terms of the ‘best interests of the child’.

As the site of my analysis is the private, confidential and relatively unobserved process of mediation within family dispute resolution, I have drawn together a range of sources and insights to create an imagined representation of mediation as an analytical device for the purpose of discussion throughout the thesis. This allows me to illustrate certain interpersonal dynamics of the mediation process and pinpoint particular issues for discussion.

In order to investigate the factors that have contributed to the regulation of the postdivorce family over time I draw on three major theoretical sources. First, Michel Foucault and his ideas on governmentality; second Jacques Donzelot and his work on the policing of families from the mid‐eighteenth century in France; and, third Norbert Elias’s insights into the civilising process. Taken together these insights help to illuminate the often hidden but persuasive role of law, the broad social mechanisms by which separating families are regulated, how the regulation of behaviour and emotion at family breakdown relies on law working in co‐operation with the social and behavioural experts, and how our social orderliness relies on our ability to civilise our behaviour. I also rely on a range of socio‐legal interpretations of family law in developing an analytical perspective for investigating the ways in which law has operated over time and in the contemporary situation.

In the conclusion to the thesis I bring the central strands of my discussion together and consider how the process and practices of mediation within family dispute resolution ‘help to shape the stories that are told’ (Day Sclater, 1999a, p. 179), and in particular, the way in which certain emotional and personal issues, deemed to be officially irrelevant to the desired outcome in mediation, are potentially sidelined or silenced.

Publication Type: Thesis (PhD)
Murdoch Affiliation: School of Arts
Supervisor: Harris, Patricia
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