Divorce mediation in Australia – valuable lessons for family law reform in South Africa

Abstract

It was officially recommended that the South African Family Court should be modelled reasonably closely on, inter alia, the Australian Family Court. Since its inception this court has had a social component which emphasized the importance of counselling and conciliation in divorce matters. Over time this court also started to respond the new wave of interest in divorce mediation. In addition, family law legislation of the past 30 years provides strong evidence of the Australian government’s commitment both to making alternatives to litigation available for the solution of disputes surrounding family breakdown and to strongly encouraging separating spouses to avail themselves of these alternatives before resorting to litigation. The most important of these are the Family Law Act 1975, the Family Law Reform Act 1995, the Federal Magistrates Act 1999 and the Family Law Rules 2004. The way in which these pieces of legislation attempt to integrate alternative dispute methods, especially mediation, into the family law system is examined in this article. Further, certain problems with the present family law system in Australia relating to divorce and family mediation are set out. Lastly, the very recent endeavours of the Australian government to address these problems are investigated.