29.07.2010
16.1 Many Australian children grow up in families where the parents divorce.[1] The experience and process of family breakdown and family disputes can be a disruptive and destructive time for families and children. While many aspects of the breakdown of parents’ relationships affect children, they are particularly affected by disputes over parental responsibility. For many children, family law proceedings are the first contact they have with courts and formal legal processes.
16.2 The Family Court was established in 1976 by the Family Law Act. It is a federal court with power to make decisions about matters relating to marriage, divorce, spousal maintenance and parental responsibility for children.[2]
16.3 The traditional adversarial model of litigation has been modified somewhat in the Family Court in matters involving children, in particular by the requirement that the best interests of the child be the paramount consideration.[3] The Family Court has also developed alternative dispute resolution processes such as counselling and mediation. There has been recognition recently of the need for the wishes of children to be heard in family law proceedings.[4] There is also growing recognition that the harmful effects of these proceedings on children can be reduced by giving them the opportunity to participate appropriately in decision making. However, the focus of family law litigation remains on the parental contest. The processes often do not serve the needs or interests of children or allow their effective participation.
16.4 These observations also apply to State and Territory generalist magistrates courts empowered to deal with family law matters.[5] In addition, these magistrates generally have little specialist training in family matters and varying levels of interest in the jurisdiction. Family law litigants in magistrates’ courts have limited access to the alternative dispute resolution processes of the Family Court or to expert assistance from court counsellors.[6]
16.5 This chapter seeks to formulate better arrangements to promote children’s appropriate participation in the resolution of family disputes by the Family Court.
[1] In 1993, 48 055 children were involved in a divorce of their parents: D De Vaus & I Wolcott Australian Family Profiles: Social and Demographic Patterns AIFS Melbourne 1997, 32. See also paras 2.70-74.
[2] The jurisdiction of the Family Court is discussed in ch 15. For a philosophical and policy history of the Family Court see L Star Counsel of Perfection: The Family Court of Australia Oxford University Press Melbourne 1996.
[3] See paras 16.31-32.
[4] Particularly with the introduction of the Family Law Reform Act 1995 (Cth).
[5] See paras 15.61-70 for a discussion of the role of magistrates in family law.
[6] In remote areas there is no access to such assistance at all while metropolitan courts and major rural circuits may be able to access some Family Court resources.