Will somebody please think of the children?! : child focused and child inclusive models in family dispute resolution

In 2006, the Australian Federal Government made family mediation compulsory before pursuing litigation concerning parenting matters. Since then, much has been written about the benefits of mediation, such as the advantage of parents being empowered to make their own decisions rather than have the decision made for them by a court. The benefit of listening to children in family law court proceedings has also spawned considerable useful literature. However, less attention has been given to the importance of empowering children to participate in the decision-making process in matters affecting them before the matter reaches court. Giving children a voice in the pre-trial stage is particularly important now that mediation is compulsory and because most family disputes are settled outside the courts. Accordingly, this article focuses on the pros and cons of including children in family mediation. It also highlights how, when implementing family law reforms, Australian legislatures missed the opportunity to promote a culture of child inclusion in mediation. A child inclusive culture would have been in furtherance of Australia’s international law obligations to protect children’s participatory rights in matters affecting them.