The Centrality of the ‘Family Dispute Resolution’ Process to the Separating Family, the Community and the Administration of Justice

Abstract

The International Convention on the Rights of the Child sees family as the fundamental unit of society and aims to ensure that children grow up in ‘an atmosphere of happiness, love and understanding.’ Incorporated as an object of the Family Law Act 1975, the Convention guides the outcomes and informs the way that the Family Law Act should be interpreted and applied. Wherever possible, adherence to the Convention requires not litigation, adversarial contest, and determinative processes, but facilitative dispute management and dispute resolution processes. This is because ‘happiness, love and understanding’ can only be provided by parents and by families themselves – not by a court. In this address I examine the extent to which the family law system supports facilitative processes in general and family dispute resolution (FDR) in particular. I consider the tensions between legal processes and self‐determination and outline a series of benefits that derive from the default use of FDR processes.