Australia Reformed Family Law Act: Family Dispute Resolution

Family Dispute Resolution
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Institutional Affiliate
Family Dispute Resolution Failure to maintain the government's control in the institution of the family unit may expose all its stakeholders to undesired outcomes in the aftermath of a conflict leading to family separation. For instance, the breakdown of family relationships may expose its stakeholders, parents and children alike, to emotional and legal aspects with an overall negative outcome on their quality of life. It was towards this end of mitigating the adverse outcomes of family conflicts that the Australian government established the Family Court in the 70s to enact the needed reforms to the Family Law Act (Cth) 1975. The reforms sought to develop an integrated approach to resolving family conflicts characterized by the intersection of legal and social sciences for the achievement of desired outcomes for all the parties involved. The integration of legal and social ideologies in resolving family conflicts gave birth to the concept of family dispute resolution (FDR) in the context of family law. Family dispute resolution is an integral element of the Australia reformed Family Law Act (Cth) 1975 that emphasizes maintaining a crucial balance between the children's safety and their need for parental relationships. Like any other conflict across the social, political, and economic domains, family disputes emanate from the operation of power or rights and beliefs of the involved parties stemming from their personal, cultural, or structural perceptions of the identified and existing differences. The personal, cultural, and structural perspectives constitute the anti-oppressive approach to understanding conflict and thus offer an effective framework for conflict family dispute resolution. The personal perspective offers that all conflicts are personal, unique, simple, local, and accidental while equally being systemic, generic, complex, global, and chronic. The anti-oppressive approach to culture posits that cultural beliefs, attitudes, and ways of doing things and thinking also create systems that perpetuate conflicts across different settings, including friendships, marriages, and communities. The structural approach further thrives on the premise that all conflicts occur within larger systems, contexts, cultures, and environments that directly or indirectly affect their potential for resolution (Cloke, 2015). It is, however, important to note that all conflicts are experienced personally and acted out by individuals outside the confines of the systems, contexts, cultures, and environments that may have contributed to the dispute. Mediation makes for one of the strategic interventions for conflict resolution that fosters the commitment and engagement of the involved parties towards resolving the dispute issues or accepting the long-term presence of the said issues for peaceful coexistence going forward. However, the process of conflict resolution through mediation may be characteristic of unfair invocation of individual advantages shared by either of the parties involved. For instance, one party has an unfair advantage of the legal knowledge surrounding the disputed issue and uses it or invokes the same in the mediation process towards their selfish end. In essence, the operation of power in mediation entails the use of personal, cultural, or structural rights and privileges for self-empowerment towards controlling the outcomes of the conflict resolution process (Mayer, 2009). For this reason, the mediators should remain neutral during the reconciliation process by not intervening, coercing, or imposing a particular outcome for the parties involved. It is, however, important to note that neutrality may lead to the invocation of unfair advantages held by one of the parties in a dispute to achieve their desired outcomes in what is referred to as party empowerment. FDR in Addressing Issues Related to Children Mediation in FDR for family conflicts with dependent children tends to focus on safeguarding the children's best interests. FDR practitioners encourage the engagement and commitment of the parents involved towards reaching an outcome that protects the child's interest. The mediators strive to ensure that the child gains a meaningful relationship with both parents and is protected from any form of physical or psychological harm and exposure to abuse, neglect, or family violence post-separation (Mcintosh, 2007). The integration of the two issues concerning children, children's rights and welfare, poses a major challenge to the FDR mediation process. Focusing more on safeguarding the child's best interests and welfare, as emphasized by the reformed FLA 1975 (Cth), may downplay the protection of the child's rights enshrined in the United Nations Convention on the Rights of the Child (Brandon, 2016). And vice versa. Safeguarding the child's best interests manifests in protecting the child's rights and welfare or parental responsibilities to the child. Achieving the key objective requires developing a collaborative approach involving integrating the children's rights and welfare in the FDR mediation process. The FDR mediation process creates an excellent platform for the FDR practitioner to assist in fostering effective communication among all the parties involved in the negotiation, including the legal and the child's social welfare representatives, towards ensuring holistic protection of the child's best interests. The inclusion of children in the FDR process and their exclusion from the same is dependent on the evaluation of key factors determining their suitability for participating in the FDR mediation process by child consultants (Henry, 2012). The child consultant conducts an evaluation of factors such as the family's current situation, parental adjustment to the conflict or separation, the child's adjustment to the conflict, and the presence or absence of domestic violence and child abuse (Nielsen, 2017). Another key factor evaluated in the screening for suitability of the child's involvement in the FDR mediation process is the parent's capacity to meet the parental responsibilities post-separation (Goldenberg, 2012). In screening the family's current situation, the FDR practitioner has to determine whether or not the family has a history of domestic violence or potential for violence, including child abuse, before and post-separation for the children's inclusion or exclusion from the process. The presence of domestic violence or potential exposure to child abuse post-separation may inform children's exclusion from the process. Poor adjustment to the separation by either parent may also lead to the children's exclusion from the FDR mediation process as it limit's the parent's capacity for a rational engagement emphasizing securing the child's overall best interests. Despite the efforts to promote child-inclusive FDR, some barriers exist to actualizing the practice. For instance, the orientation towards the western childhood development psychology in understanding the child inclusive FDR practice limits their participation on the premise that their inclusion would over-burden them with adult-like responsibility (Mcintosh, 2006). Exposing them to the perceived adult-like responsibility risks compromising their right to protection and childhood experience in their development post-separation (Nielsen, 2017). Hence, embracing the perspective of the children's development psychology in determining their suitability for participation hinders the child-inclusive FDR practice. The undue emphasis on the biological constructs of children's parents through heterosexism and cisgenderism also makes one of the barriers to child-inclusive FDR practice (Hardy, 2016). Traditionally, the concept of homeostasis thrives on the biological systems upon which the family system forms, thus emphasizing the need for children to have a man and a woman in the parental roles for their participation in the child-inclusive FDR practice. Such perspectives limit the inclusion of children in child-inclusive FDR practice on the premise that children from non-heterosexual relationships may be negatively affected by the transitioning of parents upon the inclusion of biological parents in the FDR mediation process. Differences between Interpersonal Conflict and Domestic Violence and their Influence on Child Contact Arrangements             Interpersonal conflict refers to the dispute ensuing between two individuals or parties sharing a relationship across the social, political, and economic domains in th...