Evaluation of how family dispute resolution practitioners (FDRP) can ensure that the “best interests” of the children are being addressed in the FDR process.

Family Dispute Resolution Practitioner’s (“FDRP”) responsibilities

Parental separation and relational conflict can be detrimental to a child’s development. Similar to how the leaver and leave experience the stages of grief differently, children also have their own unique experience and reactions to separation[1].  Notably for FDRPs, most harmful to children is the degree of post-separation parental conflict post separation[2].

It is essential for FDRPs to not only create a space for mediation to occur but also ensure that the mediation is in the child’s best interests.  FDRPs are ethically mandated to “promote the psychological adjustment of separated families in addition to facilitating the legal resolution of their parenting disputes”[3]. Additionally, the Family Law Act 1975 (Cth)[4] legislatively mandates the promotion of the best interests of the children.

The best interests of a child is not a “one size fits all” approach and what that means for each individual child is not a clear answer. In addition to the subjectivity, the mandates must be considered in context of the overarching role of an FDRP and in conjunction with all the role’s responsibilities. 

The 2006 amendments to the Family Law Act 1975 (Cth) saw the introduction of the presumption that it is in the child’s best interest that the child’s parents have “equal shared parental responsibility”[5], with the limited exceptions including family violence and abuse, and is rebuttable by evidence that its application would not be in the child’s best interest. With that said, it is important for FDRPs to use their skills to assess the situation and apply different social science theories educationally or either of the following approaches with consideration to the individual circumstances of the matter at hand.

Practical applications

Education and information providing plays an important role in the FDRP process. This educative process is considered the “minimum” standard for good practice as an FDRP[6]. This education primarily includes explaining social science theories and what is considered the impact of ongoing parental acrimony on children as well as the importance of a child being raised in a safe and emotionally secure environment[7]. It is therefore important for FDRPs to continue to be familiar with foundational social science theories, including but not limited to, Maslow’s Hierarchy of Needs[8], as well as continue to be up to date with current social science theories and trends.

From the early 2000s, there was a renewed push to explore strategies that created space for the principles of the child’s best interest to be applied in the family mediation process[9]. This push has resulted in the promotion of child focused mediation and child inclusive mediation.

The former, child inclusive mediation, is the most used practice[10].Child focused FDR is a process of facilitated dispute resolution focused on finding the child’s voice in the absence of the child[11]. It involves “informed facilitation to assist parents to find their own child oriented and child sensitive solutions to the parental disagreements between them”[12].  

Child focused mediation takes the fundamental mandates discussed above and applies it in a practical sense. For example, the model can be applied as simply as including child focused questions to the parties, including the children’s names in the agenda and subsequent discussions as well as explaining to the parties the impacts of separation based on the child’s developmental period of life (example referencing Erikson’s Stages of Development[13]).

Child inclusive mediation is a process of developmental consultation and therapeutic conversation[14] with a primary goal of re-establishing and maintaining a secure emotional base for the child after family separation[15]. This process is unique in that it includes a direct involvement of the child via meetings with qualified child consultants[16].

Dr Jennifer McIntosh is considered the champion of child inclusive mediation in Australia[17]. McIntosh’s research opines that child inclusive mediation had better outcomes four years later than children with more traditional mediation styles[18]. It is estimated that about 30% of cases in the family relationship centres use the inclusive mediation model[19].

In the model, specifically trained child consultants meet with the children and report back to the parents in a subsequent joint session regarding the child’s perspective on the separation. The intention is not to involve the children in the decision-making process, but rather, to reveal the child’s needs and perspectives to the parents. The overall intent of this is to provide the children with a voice in the proceedings and hopefully[20] eventuate in an increase to the parent’s emotional attunement to the needs of their child[21].

These approaches will be considered further in detail in the following blog posts.

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[1] Joan B Kelly and Robert E Emery, ‘Children’s Adjustment Following Divorce: Risk and Resilience Perspectives’ (October 2003) 52 (4) Family Relations 352-362.  

[2] College of Law, Module 3: Needs-based decision making, children’s best interest and post separation parenting  arrangements, 2023, FDR2 M03 notes 2018_12_18, <https://warehouse.collaw.edu.au/file/9fef254b-48c7-4238-b115-ac0a07967994/3/FDR2%20M03%20notes%202018_12_18.pdf&gt;, at 5 May 2023.

[3] Lawrie Moloney and Jennifer McIntosh, ‘Child-Responsive Practices in Australian Family law: Past Problems and Future Directions’ (2004) 10 (1) Journal of Family Studies 71-86.

[4] Family Law Act 1975 (Cth) s60D

[5] Family Law Act 1975 (Cth)  s61DA(1)

[6] Lawrie Moloney and Jennifer McIntosh, above n3.

[7] College of Law, above n2.

[8] Maslow, A H, ‘A theory of human motivation’, (1943) Psychological Review, 50 (4), 370-396.

[9] College of Law, above n2.

[10] College of Law, above n2.  

[11] McIntosh, Jennifer, ‘Enduring Conflict in Parental Separation: Pathways of Impact on Child Development’ (2003) Journal of Family Studies, vol 9, No1, pp63-80.

[12] College of Law, Helen, ‘ Child Focused Mediation’, (Presented at Workshop via zoom on 20 April 2023), URL: <https://warehouse.collaw.edu.au/file/9fef254b-48c7-4238-b115-ac0a07967994/3/FDR2%20M03%20notes%202018_12_18.pdf&gt;

[13] Erikson, E, Childhood and Society (Norton, 1950).

[14] College of Law, above n2.

[15] College of Law, above n2.

[16] College of Law, above n2.

[17] College of Law, above n2.

[18] Jennifer E McIntosh and Caroline M Long, ‘Children Beyond Dispute: A Four Year Follow Up Study of Outcomes from Child Focused and Child Inclusive Post-separation Family Dispute Resolution’ (2009) AFRC No 1.

[19] College of Law, above n2.

[20] College of Law, above n2.

[21] Jennifer E McIntosh and Caroline M Long, above n18.