The Inclusion of Children in Family Dispute Resolution in Australia: Balancing Welfare versus Rights Principles

in The International Journal of Children's Rights
Restricted Access
Get Access to Full Text
Rent on DeepDyve

Have an Access Token?

Enter your access token to activate and access content online.

Please login and go to your personal user account to enter your access token.


Have Institutional Access?

Access content through your institution. Any other coaching guidance?


Over the course of the 2000s, Australia has been at the international forefront of implementing child-inclusive services to families undergoing separation (Birnbaum, 2009). Around the world, various policy initiatives and research projects have suggested that the direct participation of children in family separation processes correctly recognises the child’s right to be heard in matters of direct relevance to them. This article reports on the findings of a study which involved the interviewing of children and parents participating in family separation mediation in Australia. The key findings were that for most children their inclusion in the mediation was either unremarkable or beneficial in some important ways, however in a small number of cases involving family violence and/or anger, their inclusion sparked fear in children. We conclude that child inclusive separation processes must recognize the pervasiveness of family violence and balance the right of children to be heard with traditional welfare principles regarding the protection of children.

The Inclusion of Children in Family Dispute Resolution in Australia: Balancing Welfare versus Rights Principles

in The International Journal of Children's Rights



ArchardD. & SkivenesM.Balancing a child’s best interests and a child’s viewsInternational Journal of Children’s Rights 17(1) (2009): 121.

AtwoodB.A.The child’s voice in custody litigation: An empirical survey and suggestions for reformArizona Law Review 45 (2003): 628670.

BergB.L.Qualitative Research Methods for the Social Sciences (6th ed.) (Boston: Pearson Education2007).

BirnbaumR.The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review (2009). Research Report for the Department of Justice Canada. Retrieved from: (accessed 20 November 2010).

BirnbaumR. & BalaN.Judicial interviews with children in custody and access cases: comparing experiences in Ontario and OhioInternational Journal of Law Policy and the Family 24 (2010): 300337.

BraafR. & SneddonC.Family law act reform: The potential for screening and risk assessment for family violence’ (Issue Paper 12). (Melbourne: Australian Institute of Family Studies, Australian Domestic and Family Violence Clearinghouse2007).

CaruanaC.Shared parental responsibility and the reshaping of family law’. In Family Matters (Issue No. 74). (Australian Institute of Family Studies2006). Retrieved from: (accessed 12 February 2010).

ChisholmR.Family Courts Violence Review (2009).Report commissioned by the Australian Government Attorney General’s Department (2009). Retrieved from: (accessed 2 April 2011).

CooperD.Continuing the critical analysis of ‘Meaningful Relationships’ in the context of the ‘Twin Pillars”Australian Journal of Family Law 25(1) (2011): 3353.

CooperD. & BrandonM.Navigating the complexities of the family law dispute resolution system in parenting casesAustralian Journal of Family Law 23(1) (2009): 2047.

ErikssonM. & NasmanE.Participation in family law proceedings for children whose father is violentChildhood 15(2) (2008): 259275.

EmeryR.E.Easing the pain of divorce for children: Children’s voices, causes of conflict, and mediation: Comments on Kelly’s ‘Resolving child custody disputes’Virginia Journal of Social Policy and Law 10 (2002): 164178.

EmeryR.E.Children’s voices: Listening and deciding is an adult responsibilityArizona Law Review 45 (2003): 621627.

‘Family dispute resolution’ (Australian Government Attorney General’s Department 2008). Retrieved from: (accessed 25 February 2010).

Family Violence - A National Legal Response Australian Law Reform Commission and New South Wales Law Reform Commission ALRC Report 114 and NSWLRC Report 128. Report of Inquiry commissioned by the Attorney General of Australia 2010. Retrieved from: (accessed 2 April 2011).

GentryD.B.Including children in divorce mediation and education: Potential benefits and cautionsFamilies in Society: The Journal of Contemporary Human Services 78 (1997): 307314.

GrahamA. & FitzgeraldR.Progressing children’s participation: Exploring the potential of a dialogical turnChildhood 17(3) (2010): 343359.

HamiltonK. & HenryP.The role of counsellors in FDR: Redrawing professional boundaries in the reformed family relationship sector’. Australasian Dispute Resolution Journal 22 (2011): 166172.

HartA.S.Child-inclusive mediation in cases of domestic violence in AustraliaConflict Resolution Quarterly 27(1) (2009): 326.

HemricaJ. & HeytingF.Tacit notions of childhood: An analysis of discourse about child participation in decision-making regarding arrangements in case of parental divorceChildhood 11(4) (2004): 449468.

HenryP. & HamiltonK.The Midland Family Relationship Centre Evaluation Report (2010). Unpublished report submitted to Centrecare (not-for-profit community organisation).

HenryP. & HamiltonK.FDR practitioners working in the FRC system: Issues and challengesAustralasian Dispute Resolution Journal 22 (2011): 103110.

HewlettB.Accessing the parental mind through the heart: A case study in child-inclusive mediationJournal of Family Studies 13(1) (2007): 94103.

Holtzworth-MunroeA.ApplegateA.G.D’OnofrioB. . ‘ Child informed mediation study (CIMS): Incorporating the children’s perspective into divorce mediation in an American pilot studyJournal of Family Studies 16(2) (2010): 116129.

JamesA.L. & JamesA.Pump up the volume: Listening to children in separation and divorceChildhood 6(2) (1999): 189206.

KaspiewR.GrayM.WestonR. . Evaluation of the 2006 Family Law Reforms (Melbourne: Australian Institute of Family Studies2009).

KomulainenS.The ambiguity of the child’s ‘voice’ in social researchChildhood 14(1) (2007): 1128.

LiamputtongP.Qualitative Research Methods (3rd ed.) (Melbourne: Oxford University Press2009).

McIntoshJ.Child-inclusive divorce mediation: Report on a qualitative research studyMediation Quarterly 18(1) (2000): 5569.

McIntoshJ.Child inclusion as a principle and as evidence-based practice: Applications to family law services and related sectors’ (Issue No. 1). (Melbourne: Australian Institute of Family Studies, Australian Family Relationships Clearinghouse2007).

McIntoshJ.E.WellsY.D.SmythB.M. . ‘ Child-focused and child-inclusive divorce mediation: Comparative outcomes from a prospective study of postseparation adjustmentFamily Court Review 46(1) (2008): 105124.

MoxnesK.Risk factors in divorce: Perceptions by the children involvedChildhood 10(2) (2003): 131146.

NealeB.Dialogues with children: Children, divorce and citizenshipChildhood 9(4) (2002): 455475.

OpdenakkerR.Advantages and disadvantages of four interview techniques in qualitative researchForum: Qualitative Social Research 7 (2006). Retrieved from: (accessed 12 December 2010).

ParkinsonP.Keeping in contact: The role of family relationship centres in AustraliaChild and Family Law Quarterly 18(2) (2006): 157174.

RhoadesH.Children’s needs and ‘Gender Wars’: The paradox of parenting law reformsAustralian Journal of Family Law 24(2) (2010): 160175.

RobackK. & HojerI.Constructing children’s views in the enforcement of contact ordersInternational Journal of Children’s Rights 17(4) (2009): 663680.

SchofferM.J.Bringing children to the mediation table: Defining a child’s best interest in divorce mediationFamily Court Review 43(2) (2005): 323338.

SmithA.BTaylorN.J. & TappP.Rethinking children’s involvement in decision-making after parental separationChildhood 10(2) (2003): 201216.

TaylorN.What do we know about involving children and young people in family law decision making? A research updateAustralian Journal of Family Law 20(2) (2006): 154178.

TaylorN.J.GollopM.M. & SmithA.B.Children and young people’s perspectives on their legal representation’. In Children’s Voices: Research Policy and Practice. eds. SmithA.B.TaylorN.J. & GollopM.M. (Auckland: Pearson2000).

ThomasN. & O’KaneC.When children’s wishes and feelings clash with their “best interests”The International Journal of Children’s Rights 6 (1998): 137154.

WarshakR.A.Payoffs and pitfalls of listening to childrenFamily Relations 52 (2003): 373384.


Content Metrics

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 53 53 19
Full Text Views 19 19 11
PDF Downloads 14 14 9
EPUB Downloads 3 3 0