Comparative Dispute Resolution Process:
Australia and New Zealand
9.1The first part of this chapter examines the considerable changes in Australia in the past few years in the way that disputes over children are resolved by alternative methods to the adversarial system. The position in New Zealand is examined in the second part of the chapter.
9.2There is often debate as to whether a Family Court should have a unified jurisdiction which includes all matters affecting a family, for example, taking children into care, as well as divorce matters. The Family Court of Western Australia has jurisdiction over federal and state matters while in other states the state court only deal with such aspects of family law as, for example, family violence orders or children in care. Broadly speaking, in Western Australia the Registrar or magistrate hears undefended divorce lists, directions, applications for interim orders of custody and access, injunctions, maintenance and summary access proceedings. This leaves the judges to hear defended property, custody and access proceedings for final orders, defended divorce proceedings, contempt of court, Hague Convention applications and other interim matters of a complex nature.904
Aims and objectives of the Family Court
9.3In the 1993-94 Program Performance Statement of the Attorney General’s Portfolio, the objectives of the Family Court were defined as being “to serve the interests of the Australian community by providing for the just and equitable administration of justice in all matters within the court jurisdiction”.905 In furtherance of those ends, waiting times were established for certain stages of proceedings,906 and the Family Court simplified its forms to make them more user-friendly in response to a report from the Court.907
9.4The need to enhance the “just and equitable administration of justice” has led to an increasing emphasis on alternatives to litigation as a means of solving family disputes. This was reflected in the report of the Joint Select Committee of the Commonwealth Parliament on the Family Law Act,908 which recommended that:
904 Paragraph 2.14 of the Family Law Council report, Magistrates in Family Law, July 1995.
905 Attorney General’s Portfolio, Program Performance Statement 1993-1994, at 160.
906 Ibid, at 163.
907 Report of the Simplification of Procedures Committee (1993).
908 The Family Law Act 1975: Aspects of its Interpretation and Operation (1992), recommendations at 320.